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Fiduciary

Avoiding ERISA Lawsuits Isn’t Hard

Proposed class action lawsuits by retirement plan participants against their own employers are on track for a fivefold increase between last year and this year, according to a Bloomberg Law analysis. Sixty-five class action suits have been filed so far in 2020 and many of these suits are for excessive fees and/or the use of overpriced share classes. Several employers have been sued multiple times (e.g. Quest Diagnostics, Cerner Corp, Omnicom Group). Startlingly, some of the employers are large money management and plan recordkeeping firms (e.g. INVESCO, Goldman Sachs, BlackRock, Mutual of Omaha, Fidelity – multiple times). Talk about a fox guarding the hen house!Moreover, these lawsuits are being brought against smaller plans (e.g. Greystar Management Services - $188M plan) and to other participant driven plans like 403(b)s (e.g. Mercy Health, University of Miami). After all, ERISA and the duty to pay only reasonable fees applies equally to qualified plans of all sizes and flavors. Sure, many of these lawsuits can be explained by the fact that the case law is maturing (providing a blue print for action) and that participants are more knowledgeable and attuned to fees now that the expense curtain has been pulled back somewhat. Today, there

The Value of Participant Data

In the tech world, there is an old saying: “if the product is free, you’re not the customer; you’re the product.”  Turns out this was first presented as a concept regarding the relationship between TV networks and viewers way back in 1973.  It’s as true now as it was then! What does this have to do with retirement plans you might ask.  Well, in several recent ERISA lawsuits the use of participant data by a plan’s provider to cross-sell other products and services has been raised as an ERISA violation both by the plan sponsor and by the providers.  To wit: “Even worse,” the lawsuit states, “Shell defendants allowed the Fidelity defendants to use plan participants’ highly confidential data, including Social Security numbers, financial assets, investment choices and years of investment history to aggressively market lucrative non-plan retail financial products and services, which enriched Fidelity defendants at the expense of participants’ retirement security.” We thought it would be interesting to consider the enterprise value of participant data by making some comparisons with the tech and social media giants.  In 2015 a tech blog published these numbers (market capitalization/monthly average user count).  We calculated the 2020 numbers (with some difficulty!). Value of a User 2015 2020 Facebook $158 $246 Google $182 $500 Alibaba $621 $850 Amazon $733 $3,500 What the table

Trick or Treat – How does that fund wind up on the platform?

The next time you’re speaking with a 401(k) service provider, ask them how that fund (any of the funds) happened to make it onto their platform.  Is it because that fund has superior investment performance?  Is it because the platform provider or insurance company’s well-heeled cadre of analysts deemed that fund to be investment worthy?  While we’re sure (well

Jerome Schlichter; Luke Skywalker or Darth Vader?

This excellent article by Darla Mercado provides background and commentary on Mr. Schlichter, founder of St. Louis based Schlichter Bogard and Denton. He is well known within the 401(k) industry for launching (and winning) a volley of lawsuits against 401(k) plan sponsors and providers, focused mostly on breach of fiduciary duty in the form of excessive fees and funds that are not in the plan participant’s best interests.