Brown University Faces Familiar Allegations in 403(b) Lawsuit

With wording that seems to be duplicated from filings against other higher education institutions, a complaint has been filed against Brown University and fiduciaries of its Deferred Vesting Retirement Plan and Legacy Retirement Plan.

As with other lawsuits, the complaint alleges that because the marketplace for retirement plan services is established and competitive, and because the plans have more than $1 billion in assets, the fiduciaries have tremendous bargaining power to demand low-cost administrative and investment management services and well-performing investment funds, but instead, they caused the plans to pay unreasonable and excessive fees for investment and administrative services.

In addition, the complaint says the retirement plans’ fiduciaries selected and retained investment options for the plans that historically and consistently underperformed their benchmarks and charged excessive investment management fees. It also alleges the fiduciaries failed to negotiate fixed fees for recordkeeping services, rather than asset-based fees, and retained share classes for funds that charged higher fees than other less expensive share classes that were available for the plans for the same funds.

Also similar to other lawsuits against higher education institutions, the complaint says that instead of regularly monitoring all the plans’ investment choices and for periodically reviewing and evaluating the entire investment choice menu to determine whether it provided an appropriate range of investment choices into which participants could direct the investment of their accounts, the fiduciaries offered a “bewildering array” of investment options in the plan. At one time, the Legacy Retirement Plan offered 175 investment options through Fidelity Investments and an additional 24 investment options through TIAA, which included numerous duplicative investment choices (e.g., target-date funds from each recordkeeper), the complaint says. In addition, at one time, the Deferred Vesting Retirement Plan offered 177 investment options through Fidelity and an additional 26 investment options through TIAA, which also included numerous duplicative investment choices.

The complaint also calls out the use of individual annuity contracts offered by TIAA that only allowed participants to withdraw funds in ten annual installments unless they paid a surrender fee of 2.5%.

Finally, the lawsuit alleges fiduciaries approved a TIAA loan program that required collateral as security for repayment of the loan, charged “grossly excessive” fees for administration of the loan, and violated U.S. Department of Labor (DOL) rules for participant loan programs.

It’s been fairly recent that the plaintiffs’ bar has added Employee Retirement Income Security Act (ERISA) 403(b) plans as targets for excessive fee lawsuits similar to those filed against 401(k) plans for years.

However, before new Internal Revenue Service (IRS) 403(b) regulations were passed in 2007, even ERISA 403(b)s operated very differently than 401(k) plans. The lawsuits attack the 403(b) plan design model of offering an extensive amount of investment options, including individual annuities, and using multiple recordkeepers. Before new 403(b) regulations were passed in 2007, there was little plan sponsor oversight of 403(b)s. Often annuity providers were allowed to meet with employees and set up individual annuities for them, which resulted in many plans having hundreds of investments. “I’m surprised the plaintiffs' bar has turned to 403(b)s,” says David Levine, a principal with Groom Law Group, Chartered in Washington, D.C. “These lawsuits are in a lot of ways clones of 401(k) lawsuits, completing disregarding some of the distinctions between the two plan types.”

Since the 403(b) regulations were passed, plan sponsors have been trying to consolidate recordkeeprs and investment options, and recognize this is better for participants, especially as related to costs. However, what is especially challenging about mapping legacy 403(b) annuity assets into a new lineup of mutual funds is that participants invested in these legacy assets often have full discretion over their money. The plan sponsor cannot force them out.

One can only speculate whether courts and judges know the distinctions between the two plan types or will consider this as it is presented to them by plans’ attorneys.

In the case against Emory University, the U.S. District Court for the Northern District of Georgia granted dismissal of the claim that the plan included too many funds in the investment lineup. The plaintiffs argue that having too many investment options is imprudent. Similar to the Brown University lawsuit, plaintiffs assert that the plans offered 111 investment options, and that many of those options were duplicative. Instead, the plaintiffs allege that the plans should have offered fewer options and used more bargaining leverage with those investment options to obtain lower fees. The judge did not agree with the plaintiffs’ theory. “Having too many options does not hurt the plans’ participants, but instead provides them opportunities to choose the investments that they prefer,” he wrote in his opinion.