New Excessive Fee Suit Targets Advice, SDBAs

A lawsuit accuses Fidelity of receiving “kickbacks” from Financial Engines and leading retirement plan participants that use its SDBA option to purchase higher-priced investments.

Fidelity Management Trust Company and Fidelity Investments Institutional Operations Company have been sued by participants of the of the Delta Family-Care Savings Plan regarding excessive fees charged for its advice offering as well as its self-directed brokerage account (SDBA) option. 

The lawsuit is also filed on behalf of all other similarly situated plans. In a statement to PLANSPONSOR, Fidelity said, “The allegations in this complaint are without merit and we intend to defend against them vigorously.”

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According to the complaint, Fidelity contracted with Financial Engines Advisors, a federally registered investment adviser and wholly-owned subsidiary of Financial Engines, Inc., to provide investment advice services to individual participants in the plans that are administered by Fidelity.  Financial Engines acknowledges that it is an Employee Retirement Income Security Act (ERISA) fiduciary with respect to the investment advice program and charges a fee for its services as a percentage of the value of a participant’s account.  

The lawsuit alleges that, in order to be included as the investment advice service provider on Fidelity’s platform, Financial Engines agreed to pay—and is paying—Fidelity a significant percentage of the fees it collects from 401(k) plan investors, and these fees are not being paid for any substantial services being provided by Fidelity to Financial Engines or to participants of the plans, but are instead being paid as part of a so-called “pay-to-play” arrangement, or a kickback.  “This ‘pay-to-play’ arrangement wrongfully inflates the price of investment advice services that are critical to the successful management of workers’ retirement savings and violates the fiduciary responsibility and prohibited transaction rules of … ERISA,” the complaint says. 

In addition, the lawsuit claims that when participants in the plans invest through Fidelity’s SDBA program, BrokerageLink, and the mutual funds selected by the participants offer more than one share class, Fidelity does not always acquire the class of shares with the lowest expense ratio.  “Instead, Fidelity acquires share classes that have higher expense ratios and that will pay Fidelity significant amounts in revenue-sharing payments, effectively using the plans’ assets for its own benefit and for its own account. In doing so, Fidelity exercised its discretionary authority over retirement plan assets in a manner designed to increase its compensation at the expense of participants,” the complaint says.  

The participants also accuse Fidelity of providing incomplete, inaccurate, misleading or false information required to be included in the Annual Returns on Form 5500 for the Delta Plan and other plans with respect to the revenue sharing issues in the case.  

The lawsuit asks the U.S. District Court for the District of Massachusetts to order the defendants to make good to the plans the losses resulting from the alleged breaches, in addition to ordering them to disgorge any profits they have made as a result of their actions. 

The complaint in Fleming v. Fidelity Management Trust Company is here.

Sponsors Can Benefit from More Granular View of Markets

Portfolio managers shared what they feel are the most compelling opportunities in the equity markets today.

Some of the best-performing mutual fund portfolio managers in the business came together for a mini investing summit Wednesday in New York, put on by SunStar Strategic to highlight its money manager clients that have had strong success navigating the market turbulence of the last year.

Following breakfast, a lineup of seven portfolio managers and analysts each made their 10- to 15-minute case for what they see as the most compelling opportunities in the equity markets today. While their opinions ranged in terms of which corners of the markets might do best in coming years, it’s fair to say that they all see compelling evidence for staying broadly invested in equities for the foreseeable future—but also for being increasingly picky about risk amid stubborn global headwinds.

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Eric Marshall, manager with Hodges Capital Management, focused on making the case for small caps, arguing a “bottoms-up approach makes a lot of sense in the current environment, particularly within the small-cap universe.” He believes the current market turbulence, especially when one zooms in on the difficulties driven directly by major oil price fluctuations,  has caused an increasing amount of inefficiency in the markets, “most notably among small caps that are not as heavily analyzed or closely followed as their larger capitalized counterparts.”

According to Marshall, opportunities range from small southern regional banks with manageable exposures to the oil production sector, which have seen their stock prices perhaps unfairly tarnished, through to companies that will feel a tailwind from the big federal highway funding bill passed last year. 

“At a high level, we have had success from our conviction that we should not try to anticipate or preempt the macroeconomic trends,” Marshall adds. “Instead we look at individual public stocks, and we analyze them almost in the way of a private equity firm sizing up an opportunity. We deploy our research team out into the field to make thousands of points of contact with the managers of the companies we are thinking about investing in. We search out the company’s own clients and suppliers to get their input as well.”

The idea is to really go beyond the equity price and get a handle on the true upside potential versus the downside risk of individual stocks, explains Robert McIver, manager with Jensen Investment Management. Thinking about his own firm, McIver says one way to put this thinking into action is to “think very deeply and critically about the cash flow characteristics of stocks that are going into our portfolio.”

“In our most high-conviction and defensive equity portfolios, for example, we will only admit stocks that have a proven track  record of maintaining very heathy and stable cash flows, even though periods of recession,” he explains. “In terms of actual stocks, this may, for example, favor disposable goods companies that manufacture products that do not see demand fluctuate in line with changes in GDP. There are many ways this thinking can play out, but they key is to reduce uncompensated risk by digging deeper into the data that is available on companies and their operations.”

NEXT: Other outlook opinions 

One of the more unique arguments for how to invest wisely during periods of uncertainty came from portfolio manager Andrew Adams, with Mairs & Power, who argued that having a home-regional bias in an equity portfolio can actually be turned into an advantage. In one of the firm’s portfolios, for example, 40% of the stocks come from within Minnesota (the firm’s home state) and another 50% come from the upper Midwest region.

“One may at first think that this would represent an unnecessary concentration of risk, but it’s actually been a really powerful way for the firm to boost transparency and understanding of the holdings in its portfolios,” Adams explains. “In other words, one can really come to a deep understanding of the performance characteristics of a company by being present in its home marketplace.”

Another portfolio management expert, Janet Brown, with Fund X, highlighted the way managers are increasingly blending the benefits of active and passive management to bring greater efficiency and affordability to all parties involved in this conversation.

“One thing we can be sure about in this uncertain environment is that markets are always changing and that they will keep changing,” Brown says. “We can also be pretty confident that clients will continue to desire lower fees and will continue to desire capital preservation, even within funds that are meant to be pursuing growth.”   

Fielding a question from PLANSPONSOR, the experts all agreed with the idea that retirement plan participants probably aren’t going to be all that interested in bottom-up stock picking or the esoteric debate between, say, growth- and value-oriented investing. “But that doesn’t mean these issues aren’t of critical importance for DC plan advisers and sponsors,” Brown suggested. “In many cases it will be up to the adviser or plan providers to put a lot of this thinking to work on behalf of participants.” 

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