In the past few years, a spate of excessive fee lawsuits has caused anxiety for many plan fiduciaries. In 2022 alone, 88 excessive fee suits were filed, which is the second highest in any year, according to InvestmentNews. But while some cases have left fiduciaries responsible for large payouts — like the VCA Inc. Salary Savings Plan, in which the company paid a whopping $1.5 million cash settlement — other sponsors have been able to avoid these types of judgments. In one recent case against human resources firm TriNet, a judge dismissed the excessive fee complaint brought by plaintiffs, noting the firm’s fee benchmarking exercises as one indication that they had upheld their fiduciary duty.
Held by schools and other tax-exempt organizations, 403(b)s used to be highly dissimilar to 401(k)s — with fewer rules and requirements. And by far, the majority of high-profile excessive-fee lawsuits have targeted 401(k)s. But a recent suit against Northeastern University’s 403(b) is a strong reminder that all retirement accounts mandated under ERISA to keep fees reasonable are at risk.
Mutual of America, an insurance company that also provides services in the small-plan marketplace, has found itself in the crosshairs of an ERISA lawsuit alleging a breach of its duties of loyalty and prudence to plan participants. The plaintiffs charge that they were subject to excessive fees as a result of the company’s adoption of its own proprietary closed-architecture recordkeeping platform. The system, they allege, caused participants to pay annual administrative fees roughly 10 times what they would have if the plan had researched and engaged a third-party recordkeeper to perform comparable (or even better) services.
Food manufacturing powerhouse Kellogg was recently sued by a former employee, who alleges that the company failed to meet its fiduciary duty in administrating its 401(k) plan. The suit claims that, since at least 2016, Kellogg allowed excessive recordkeeping and managed account fees to accrue and did not take timely action to keep employee-covered fees reasonable. The lawsuit names the company, its board of directors and two separate committees that helped manage the company’s plan.
Litigation over retirement plan fees has been on the rise in recent years. Since 2020, there have been more than 170 such suits, breaking previous records. And while these cases used to affect mostly larger plans, smaller plans with fewer assets have become targets of aggressive prosecutors. Defense costs for such cases often exceed several million dollars — with some lawyers insisting on retainers of up to $15 million. Settlements and damages awarded to plaintiffs can also easily reach the multimillion-dollar range.
Over the last two years, approximately 150 ERISA lawsuits challenging purportedly excessive retirement plan fees have been filed in U.S. federal court. However, more than a dozen of those cases had been put on hold pending a recent Supreme Court case — Hughes v. Northwestern University — examining the plausibility of a breach of fiduciary duty claim by current and former university retirement plan participants. In January, SCOTUS delivered its opinion, ruling that the petitioners, originally dismissed by a district court and upheld by the U.S. Court of Appeals for the Seventh Circuit, did in fact plausibly state their claim. It vacated the Seventh Court ruling and remanded the case for further review.
For more than 15 years, institutional investment consulting firm Callan has released an annual survey designed to uncover industry trends and help sponsors gauge their retirement plan offering relative to others. And while the organization offers numerous insights in its 2022 Defined Contribution Trends Survey, responses from more than 100 sponsors revealed that maintaining a sharp focus on fees will be the top priority for plans in the coming year.