Plaintiffs Fail to Float Claim Past District Court

The U.S. District Court for the District of Massachusetts in In re Fidelity ERISA Float Litigation, No. 13-10222, 2015 WL 1061497 (D. Mass. March 11, 2015) has determined that float income is not a plan asset. This may be the last we hear about ERISA claims involving float targeting Fidelity, or any other service provider, as the defendant. Nonetheless, this case is just another example of why retirement practitioners should keep a close watch on case law that impacts fiduciary governance obligations. Unless Congress legislates new law, the Department of Labor (“DOL”) addresses the question raised by the courts, or the losing plaintiffs appeal to a higher court, it is looking like in most circumstances, float earnings are not considered plan assets.

As early as September 13, 1993 the DOL issued an Advisory Opinion addressing the collection of interest earning on assets in transit, be it contributions not invested, or distributions not cashed. This Advisory Opinion was followed by an August 1994 Information Letter and finally a Field Assistant Bulletin issued on November 5, 2002. Collectively, these three DOL publications have influenced the governance activities of knowledgeable fiduciaries by encouraging open negotiation between covered service provider and plan sponsor as to the retention of float income to avoid a prohibited transaction claim. But by determining that float income is not a plan asset; the court in In re Fidelity ERISA Float Litigation found that retention of float income is not a prohibited transaction. The Court referenced three other circuit court decisions which all held float was not a plan asset.

At this point, a fiduciary must now determine whether it is important to continue the same governance activities of the past or abandon those activities as a waste of time. Of course, under the current short-term interest rate environment float earnings do not amount to much especially for small plans, so the question is where do we go from here?

It is very important to realize that the point of this lawsuit was to go after the service providers like Fidelity where the damages across all plans could be done collectively in one case. Now that this method appears to not be viable, the remaining avenue is to go after the plan fiduciaries themselves. Although these cases are finding that float is not a plan asset, none have held that it is not a form of indirect compensation that must be considered by a prudent fiduciary under their 408(b)(2) responsibilities.

Practically then what does this mean?  Float negotiations are still important because they involve compensation paid to service providers, but will be reserved to those plans with the most assets where the amount generated is the greatest. One thing to keep in mind. If, in fact, we see a rising interest rate environment, float income will increase and become a more meaningful profit source for a covered service provider. If and when that happens, the group of plans that must take into consideration negotiations over float will necessarily increase.

Supreme Court Wrestles with Issues in Tibble v. Edison

Yesterday, the United State Supreme Court heard oral argument in Tibble v. Edison International. A link to the transcript published by the Court can be found here. For those who are interested, I highly recommend you read through it.

The main stream media, in articles such as this one, interpreted yesterday as hinting at a victory for the plaintiffs. But let’s be clear: that’s not necessarily a clear cut outcome. Even a reversal, as I will explain below, requires difficult decisions by the Justices about what is required of fiduciaries.

I generally got the sense that not one of the Supreme Court Justices (other than Justice Thomas who hasn’t asked questions in years) supported the Ninth Circuit test that held where an investment is selected more than 6 years before a lawsuit is brought, there is no ongoing duty to monitor unless changed circumstances amounting to the investment almost being like a new investment would cause a fiduciary to reevaluate the fund. Being like new could mean a defined style drift, new management, dramatic change in performance, etc… On the other end of the spectrum, it also wasn’t 100% clear that there is enough support for the Plaintiffs’ position to simply have a constantly moving 6 year window with no test or limitations on what exactly a fiduciary should be doing to monitor investments. There may be a handful of Justices willing to do this, but one of them surely isn’t Justice Scalia who seemed more comfortable with the changed circumstances test than the others.

So given what we know, what is the likely outcome? Very unlikely they affirm the Ninth Circuit’s test but almost as unlikely they simply reverse without providing guidance on what the duty to monitor looks like. So that leaves us somewhere in the middle, swimming in shades of gray.

Given that the last few ERISA opinions have been 9-0 votes, I wouldn’t be surprised to see some compromises happening behind closed doors to get to another 9-0 vote here. How do they get there? The Justices will have three options: (1) they can reverse and remand back to the Ninth Circuit to develop a nuanced test for the duty to monitor, something that Justice Sotomayor was uncomfortable with the Supreme Court doing itself…if the parties are later unhappy with that test, they can file another cert petition to the Supreme Court, (2) they could do the same thing but provide “limited” guidance on what the test should look like, or (3) they reverse and provide robust guidance on what the duty to monitor requires of ERISA fiduciaries, more or less cutting the Ninth Circuit out of the process.

Of course, I don’t pull these options blindly out of a hat. Option #2 with the limited guidance is something the Court has been comfortable doing in recent decisions, including in Dudenhoeffer v. Fifth Third Bancorp last year and in Cigna v. Amara, a few years back (which my new colleague Stephen Rosenberg recently discussed on his blog sometimes brings unintended consequences). If they go this route, questions we don’t have answers to until we see a decision include what kinds of information is a fiduciary required to look at (performance, fees, etc…)? Will they keep calling it a changed circumstances test but change the criteria? Will they throw that test out and call it something different?

No matter the outcome, we will cover the decision here on the blog as soon as it’s published, which is expected before the end of June, but possibly earlier.

Lockheed Martin Settles Excessive Fee Lawsuit for $62 million

(Long time readers will note that the blog looks a little different. Last week, the blog was updated to reflect that Editor in Chief Thomas E. Clark, Jr, joined The Wagner Law Group as Of Counsel. Click here for more information.)

The last of the first wave of excessive fee lawsuits filed on September 11, 2006 in what many dubbed the “Schlichter Blitzkrieg” has been settled. On the eve of trial in December, the parties in Abbot v. Lockheed Martin agreed to settlement in principle to avoid trial and now the terms of the settlement have finally been made public.

Lockheed Martin has agreed to pay $62 million and implement extensive affirmative relief. According to the settlement agreement, Schlichter, Bogard & Denton will request up to $20,666,666 in attorneys’ fees and reimbursement of up to $1,850,000 in costs, all to come out of the settlement amount above. The plaintiffs had alleged that the fiduciaries to the Lockheed Martin 401(k) plans cause the plans to pay excessive administrative fees and that the fiduciaries had imprudently managed the money market fund and company stock fund.

The affirmative relief agreed to is as follows:

(1) to publicly file with the Court the annual Department of Labor filing that discloses fees paid by the Plans (known as Schedule C to Form 5500) as well as information about the
assets held in, and performance of, the Stable Value Fund and the Company Stock Funds;

(2) to confirm current limitations on the amount of cash equivalents held in the Company Stock Funds and the amount of money market equivalent assets held in the Stable Value Fund, and to file a notice with the Court if those limitations are changed;

(3) to initiate a competitive bidding process for the Plans’ recordkeeping services for the Plans, and to publicly file with the Court a notice identifying the entities that submitted bids and the selected recordkeeper;

(4) to offer participants the share class of investments that has the lowest expense ratio, provided that the share class is available and consistent with the needs and obligations of the Plans; and

(5) The terms of the Settlement will be reviewed by an  independent Fiduciary.

Our Thoughts

This is the single largest settlement of an excessive fee case against one employer to date. As we’ve written about before, the substantive decisions have been swinging in favor of plan participants in recent years. If that continues, this will not be the last settlement and I would imagine we could even see a higher settlement amount.

$140 Million Settlement: What it Means to Your Retirement Plan Practice

[The following article by David Witz originally appeared on the eMoney Advisor blog and is reposted here with permission]

In December 2014, two parties in a high-profile ERISA fiduciary breach case filed a motion for the court to approve a settlement worth $140,000,000. This settlement is nearly 10-times greater than some other recent high-profile settlements. To date, this is the largest settlement ever in an ERISA fiduciary breach case involving the receipt of revenue sharing by a service provider.

The lawsuit was originally filed against the defendant in 2001 over an allegation that undisclosed revenue sharing payments from non-proprietary mutual funds were made in violation of ERISA. By no means is this an indication that group annuity contracts are prohibited from use or that the settlement is an admission there was any wrong doing or that the allegations are true. However, the settlement does include a number of action items that I suggest represent a blueprint to mitigate litigation risk for any retirement plan whether it is funded with a group annuity contract or a trust.

If you are an advisor that sells and services retirement plans, you need to consider adopting the following recommendations in your business. These recommendations will require the establishment of new documented processes and procedures that will add to an advisor’s labor burden but result in mitigated litigation risk.

  1. Present all products offered by a single-covered service provider (“CSP”) that your prospect or client qualifies to purchase. Typically, multiple products are tied directly to different pricing scenarios that should be communicated to the responsible plan fiduciary (“RPF”) in order to make an informed decision. Any changes that affect pricing after the buying decision is made should also be reviewed with the RPF within 60 days. Clients using Legacy products that have been replaced with more efficient and cost-effective contemporary solutions should be informed of the opportunity to adopt a better solution.
  2. If the CSP offers the same investment option in multiple share classes, present your recommended menu with each share class, or at least the book-ends to demonstrate each pricing scenario or range.
  3. Identify which investment options are proprietary, non-proprietary, and sub-advised, and identify the cost impact by using one type of fund over another.
  4. Disclose the gross and net operating expense ratio, the 12b-1, and any other indirect fee by fund. In addition, disclose the amount as a percent and dollar amount, who can receive it, and who pays it.
  5. Provide the RPF with an estimate of the revenue sharing expected for each fund at the beginning of the plan year and a final tally of the revenue sharing paid for each fund at the end of the year. The amount of revenue sharing paid should be compared to other platforms to confirm that the amounts received are competitive.
  6. Document the file for any investment option additions, removals, or substitutions added during the course of the contract year by the plan sponsor and the effect that will have on overall cost. Documentation must include affirmative consent to the investment change by the plan’s trustees or the investment manager. Investment changes imposed by the CSP, i.e., product vendor, must provide the RPF with the option to terminate the relationship.
  7. Provide access to this information on your website and store the information in a document lockbox.

Keep in mind that these recommendations are not legal requirements, though some are imposed specifically on the defendant as a result of the settlement agreement. To learn how PlanTools technology can assist with meeting these objectives contact David J Witz by email or at 704-564-0482.

Court in Boeing Excessive Fee Case Rules for Plaintiffs, Sets Trial Date

On December 30, 2014, the district court in Spano v. Boeing denied the defendants’ motion for summary judgment on the merits and partially denied their motion for summary judgment based on ERISA’s statute of limitations. A trial date has been set for May 20, 2015 in Judge Nancy J. Rosenstengel’s East St. Louis courtroom.

The Spano case was filed over eight years ago on September 27, 2006, one of the very first excessive fee cases filed against the largest of American employers. The case has an extensive procedural history including having the district court’s first class certification order vacated by the 7th Circuit in a decision that many in the ERISA world thought was the final nail in the coffin to excessive fees cases after the 7th Circuit’s earlier decision in Hecker v. Deere. However, as Stephen Rosenberg (now of the Wagner Law Group) predicted back in 2009, Hecker would be a high water mark, the plaintiff’s bar would regroup, and the pendulum could swing back the other way. This decision in Spano now makes clear that the pendulum has swung…and swung hard.

In the decision, the district court describes each of the plaintiffs’ claims:

Plaintiffs allege that Defendants caused the Plan to pay unreasonable administrative fees to its recordkeeper State Street/CitiStreet. Additionally, Plaintiffs allege that Defendants selected and retained mutual funds as Plan investment options until 2006, which charged excessive investment management expenses and were the vehicle Defendants used to funnel excessive Plan recordkeeping and administrative fees to State Street/CitiStreet via revenue sharing.

Plaintiffs further allege that the Small Cap Fund provided additional revenue sharing fees to State Street/CitiStreet and charged its investors one hundred and seven basis points per year in fees, which was grossly excessive, in order to benefit Defendants’ corporate relationship with State Street/CitiStreet.

Plaintiffs further allege that Defendants failed to monitor and remove an imprudently risky concentrated sector fund, i.e. the Technology Fund, and instead retained this fund for the purpose of benefiting its corporate relationship, rather than for the sole benefit of the Plan Participants.

Lastly, Plaintiffs allege that the Boeing Company Stock Fund incurred excessive fees and held excessive cash, impairing the value of the Plan assets. With regard to this fund, Plaintiffs also allege that Defendants failed to remedy the resulting transaction and institutional drag.

Defendants raised a number of arguments in seeking to have plaintiffs’ claim thrown out. First, they argued that the interpretation of ERISA’s statute of limitations in Tibble v. Edison should apply here and that because all of the funds were selected prior to six years before the lawsuit was filed, there can be no fiduciary breach. The court rejected the Tibble interpretation, as well as plaintiffs’ arguments that the fraud and concealment exception should apply. Citing the briefs in support of plaintiffs in the Tibble appeal to the Supreme Court, the court found that in the 7th Circuit, there is a clear duty to monitor investments after they have been selected, regardless of whether they were selected prior to 6 years before the lawsuit. The court made clear then that the claims in the case begin on September 28, 2000.

Next, the court addressed merits arguments for each of the four claims, however, they are too extensive for us to go into enough detail without simply repeating 20 pages worth of opinion. We highly suggest you read the opinion starting at page 24. Instead, we will pull out the broad highlights.

First, the court found compelling plaintiffs’ argument that the defendants failed to solicit competitive bids for the plan’s administrative services. The court noted that when they finally did, the fees paid ($32 per head) were directly in line with the expert testimony put forth by the plaintiffs.

Second, the court did an extensive job of limiting the Hecker opinion, which the defendants sought to use expansively. The court stated:

Hecker makes clear that revenue sharing does not inherently violate ERISA. In the instant case, however, Plaintiffs assert that Defendant fiduciaries put the mutual funds into the Plan, which generated revenue sharing for State Street/CitiStreet, so that these funds could provide this revenue sharing to State Street/CitiStreet. Plaintiffs cite to the testimony of various Boeing employees to argue that Defendants either “deliberately steered revenue to State Street or were conveniently oblivious to these excessive fees.”…Further, Plaintiffs here argue that the total fees (or expense ratios) for these mutual funds were excessive. Additionally, in Hecker, there was no argument that the administrative fees were not reasonable. See also George v. Kraft Foods Global, Inc., 674 F. Supp. 2d 1031, 1048, n. 17 (N.D. Ill. 2009) (“at a fundamental level, Hecker says nothing regarding the duty a fiduciary holds with respect to a 401(k) investment plan’s administrative services fees.”). Lastly, Boeing’s Plan has fewer available investment options than the plan in Hecker. See Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 596 n. 6 (8th Cir. 2009) (“The far narrower range of investment options available in this case makes more plausible the claim that this Plan was imprudently managed.”). Plaintiffs assert that, in contrast to the twenty-three retail mutual funds and the brokerage window (by which the participants could invest in approximately 2,500 mutual funds) offered in Hecker, Defendants offered only eleven investment options, and the four mutual funds were deliberately included to benefit Boeing’s corporate relationship with State Street/CitiStreet.

Third, the plaintiffs’ arguments of a conflict of interest regarding Boeing’s relationship with State Street/CitiStreet was clearly convincing to the court at this stage.

Fourth, in many instances the defendants failed to cite to any evidence of procedural prudence in support of its selection and monitoring of certain investments. This was extensively highlighted by the plaintiffs.

Our Thoughts

As noted above, this decision reflects the pendulum that has clearly swung in the participants’ favor in recent years. See also Victory for Plaintiffs: 7th Circuit Allows Class Certifications for Excessive Fee Cases; Tussey v. ABB Affirmed, Reversed, and Vacated in Part by 8th Circuit; and Supreme Court Rejects the Moench Presumption – Vacates and Remands Fifth Third Case)

Having been in the trenches in 2009 after the Hecker decision, betting a dollar that a decision such as this would be likely someday would have been a waste of a perfectly good dollar.

This decision makes two things clear. First, the ERISA plaintiff’s bar has refined the claims being brought and/or argued since Hecker and has doubled down on conflicts of interest. This shouldn’t come as a surprise. Cases such as Braden v. Walmart have provided a clear path of success, as did many of the earlier and recent settlements involving self-dealing (Bechtel, Caterpillar, Cigna, etc…) Second, Hecker doesn’t have teeth anymore…maybe just baby molars. Possibly it’s greatest lasting truth is that service providers such as Fidelity are not fiduciaries when they design a products such as a line up of funds.

As noted, trial is set for May 20, 2015. We will continue to monitor the case and report any future developments.