Compliance October 9, 2023

Complaints Allege Improper Use of 401(k) Plan Forfeitures

Plan fiduciaries were accused of fiduciary breaches for using plan forfeitures to offset future employer contributions, but ERISA experts would be surprised if this longstanding and widespread practice was found to be a violation.

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In two recent lawsuits, plan fiduciaries have been accused of violating ERISA by using plan forfeitures to offset future employer contributions, as well as to pay administrative expenses.

The use of forfeitures, or the non-vested portion of a former employee’s account balance in a retirement plan, to offset employer contributions is a longstanding practice explicitly permitted under Treasury regulations and consistent with guidance from the Department of Labor, according to Groom Law Group.

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Representatives from the law firm, which is not involved with either case, stated that the claims are surprising, given that this use of forfeitures is well established and widespread.

Separate Complaints Filed by Same Law Firm

In Dimou v. Thermo Fisher Scientific Inc.—filed on September 19 in U.S. District Court for the Southern District of California—Konstantina Dimou, a participant in Thermo Fisher’s 401(k) plan and represented by law firm Hayes Pawlenko LLP, alleges that the employer breached its fiduciary duties under the Employee Retirement Income Security Act and “consistently chose to utilize the forfeited funds in the plan exclusively for the company’s own benefit, to the detriment of plan and its participants, by using these plan assets solely to reduce future company contributions to the plan.”

The biotechnology company, which has more than $6 billion in plan assets, maintains offices in South San Francisco and Carlsbad, California, among other national and international locations, and employs more than 300,000 people.

According to the complaint, the governing plan documents state that the company will allocate and use all or a portion of a participant’s benefit forfeited under the plan to either pay for “reasonable expenses of the plan” or reduce its discretionary contributions, special contributions, matching contributions and other contributions payable under the plan.

The complaint alleges that Thermo Fisher consistently declined to use any of these plan assets to cover plan expenses over at least the past six years. Further, the lawsuit states that all participant accounts have been charged with administrative expenses, on at least a quarterly basis, over that period.

“The deduction of administrative expenses from participant accounts reduces the funds available to participants for distributing and/or investing,” the complaint states.

Thermo Fisher did not immediately respond to a request for comment.

In another complaint, Rodriguez v. Intuit Inc., filed on October 2 in the U.S. District Court for the Northern District of California, plan participant Deborah Rodriguez, also represented by Hayes Pawlenko LLP, similarly alleges that Intuit Inc. reallocated forfeited funds for its own benefit, to the detriment of the plan and its participants.

The financial software company is accused of reallocating nearly all forfeited plan assets to reduce future company matching contributions to the plan, according to the complaint. As of 2021, the plan had more than $2 billion in assets, according to Form 5500 filings.

The complaint states that in 2021, company matching contributions to the plan were reduced by $2.273 million as a result of Intuit’s reallocation of forfeited nonvested funds for “the company’s own benefit.” Only $74,000 of nonvested funds were used to pay plan expenses totaling $975,040, leaving a balance of approximately $140,000 in the forfeiture account, according to the complaint.

“Intuit has received notice of this complaint and is reviewing the matter,” a spokesperson wrote in an email. “We are proud to offer our employees best-in-class benefits designed to support health and financial well-being for themselves and their families. This includes helping them build long-term financial security through our 401(k) retirement plan, where we match $1.25 for every $1 contributed by regular full-time employees in the United States, up to 6% of the employee’s eligible pay.”

Allegations Considered ‘Implausible’ by Legal Experts

In both cases, the plaintiffs seek the “restoration” to the plan of amounts used to offset employer contributions, disgorgement of the assets and profits made by the plan sponsors’ use of the money that would have been contributed, attorneys’ fees and other equitable relief.

Marcia Wagner, founder and managing partner of the Wagner Law Group, which is not involved in either case, said almost all defined contribution plans permit forfeitures to be used to reduce future employer contributions or to pay reasonable expenses, and some plans also permit, as a third alternative, allocating forfeitures among plan participants. She added that she would be surprised if these lawsuits are successful.

“For there to be a prohibited transaction under ERISA, the relevant plan fiduciary must know or should have known that the transaction was prohibited, and in view of this long-standing practice been approved by the IRS for inclusion in tax qualified plans, such an allegation would be implausible,” Wagner wrote in an emailed response. “From an ERISA fiduciary perspective, the language of a plan document must be followed unless it is improper, is inconsistent with the terms of the plan or violates ERISA.”

Wagner said the only basis for a challenge would be if the use of the forfeitures to reduce employer contributions is inconsistent with ERISA’s exclusive benefit requirement. However, she said that statutory language does not prohibit an employer from receiving some benefit from a transaction.

If the complaints are successful, Wagner said “potential implications would be great,” because of how widespread and longstanding the existing practices for the application of forfeitures are.

Benefits October 9, 2023

US Corporate Pension Funding Rises Despite September Market Challenges

Equity losses for the month were offset by the largest single-monthly decline in liability value this year.

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U.S. corporate pension funding status increased in September, despite a decline in equities. September’s funding status was a return to the norm, following an August that saw pension funding decline for the first time this year.

Insight Investment found that pension funding status improved by one percentage point in August, to 107.5% from 106.5%. Equity losses were offset by a roughly 40 bps increase in discount rates, causing liabilities to decline faster than assets. Assets decreased by 4.5% in September, while liabilities decreased by 5.4%. Asset returns were negative 3.9%, and liability returns were negative 4.7% for the month. Insight Investments’ model follows the funding status of the top 100 corporate pension plans in the U.S.

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“As funded statuses continue to rise towards the end of the year, we are having more conversations about end-state objectives: pension risk transfer or self-sufficiency,” said Sweta Vaidya, head of solution design at Insight Investment, in the report. “More plan sponsors are considering long-term self-sufficiency and exploring how they may be able to extract value from their pension surplus.”

Treasury Rate Increases, Credit Spreads Narrow

Aon also reported an increase in the aggregate funding ratios within corporate pension plans in the S&P 500. Aon’s tracker found that pension funding increased 0.8 percentage points, to 102.3% from 101.5%, in September. Pension assets declined in September, with a negative 3.9% return.

“The month-end 10-year Treasury rate increased 50 bps relative to the August month-end rate, and credit spreads narrowed by 3 bps,” Aon’s report stated. “This combination resulted in an increase in the interest rates used to value pension liabilities from 5.32% to 5.79%. Given a majority of the plans in the U.S. are still exposed to interest-rate risk, the decrease in pension liability caused by increased interest rates offset the negative effect of asset returns on the funded status of the plan.”

The rise in interest rates resulted in pension liabilities decreasing in the quarter as well. With 10-year Treasuries up 78 bps and credit spread narrowing by 7 bps, the discount rate increased by 71 bps for an average pension plan in Aon’s tracker.

The firm reported that return-seeking assets declined in the year’s third quarter, with equities represented by the Russell 3000 Index returning negative 3.3%. Bonds were also negative, with the Barclays U.S. Long Credit Index returning negative 7.2%. In total, pension assets returned negative 4.6% in the third quarter.

Wilshire Advisors estimated the aggregate funded ratios for U.S corporate pension plans increased by 0.7 percentage points in September, roughly in line with other firms. Wilshire found pension plan funding increasing to 105.3% by the end of September.

Aggregate funding ratios increased, as a 5.4% decrease in the value of pension liabilities was offset by a 4.8% decrease in the value of pension assets.

“September’s funded status increase was driven by the continued rise in Treasury yields, causing the liability value to experience its largest monthly decline since September 2022,” Ned McGuire, Wilshire’s managing director, said in a statement. “Corporate bond yields, used to value corporate pension liabilities, are estimated to have increased by over 45 basis points.”

Although most asset classes posted negative returns in September, with the FT Wilshire 5000 Index posting its worst monthly performance of the year, the September aggregate funded ratio is still one of the highest in recent years.

“September’s month-end funded ratio estimate of 105.3% is the highest since December 2012, when Wilshire began reporting month-end funded ratio estimates, and is approaching the funded ratio of 107.8% before the Great Financial Crisis [of 2008 and 2009].”

LGIM America Reports Funding Ratio Decrease

While most analytics firms reported an increase in pension funding in September, LGIM America found otherwise. According to LGIM America’s Pension Solutions Monitor, the average funding ratio declined one percentage point, to 102.6% from 103.6%, in September.

LGIM America’s Pension Solutions Monitor estimated the health of U.S. corporate defined benefit pension plans assuming a typical liability profile using an approximate duration of 12 years and a “traditional” 50/50 asset allocation with a portfolio construction that is 50% MSCI ACW index total gross index and 50% Bloomberg U.S. long government/credit index.

LGIM attributed the decline to weak equity performance in September. Equities declined 4.1% in September, with the S&P returning negative 4.8%. LGIM estimated pension plan discount rates increased 50 bps. LGIM reported the Treasury component increasing 52 bps, with the credit component tightening 2 bps. Assets in LGIM’s 50/50 asset allocation portfolio declined 5.2%, with liabilities declining 4.2%, resulting in a decline in the aggregate funded status.

Conversely, October Three noted in its September pension finance update that a decline in equities was largely offset by higher interest rates, which is a common theme across the board.

The October Three pension tracker tracks two models: Plan A, a traditional 60/40 equities to bond portfolio, and Plan B, a retired plan with a 20/80 allocation, with an emphasis on corporate and long duration bonds. Plan A was for the month, but up eight percentage points for the year. Funding status in Plan B declined slightly in September, but its funded status remained at roughly 101%, one percentage point higher than the start of the year.

The lag in funding status in Plan B can be attributed to a decline of between 3% and 5% in bonds last month, a result of Treasury yields rising 0.5% and corporate bond yields rising 0.4% in September.

Milliman Predicts Ratios Could Reach 107% by Year-End

According to Milliman’s Pension Funding Index, which tracks the 100 largest U.S. corporate defined benefit pension plans, pension funding ratios increased 0.43 percentage points to 103.6%. For the year to date through September, the Milliman 100 PFI has increased 1.7 percent.

Milliman projected funded status ratios to rise to 103.6% by the end of 2023, in a scenario in which assets return 5.8% on average, if the current discount rate of 5.84% was maintained. In Milliman’s most optimistic scenario, assets could return 8.8% per year, with funding ratios rising to 107% by the end of 2023 and 119% by the end of 2024. That scenario assumes that interest rates would rise to 5.99% by the end of this year and 6.59% by the end of 2024.

“September was a record month of sorts, even though the net movement in funded ratio was modest,” said Zorast Wadia, author of the PFI, in the monthly report. “September returns were the lowest of the year, yet the rise in discount rates was the largest monthly change we’ve seen in the last 12 months. In the end, this rise and the corresponding $60 billion liability drop outweighed September’s decrease in assets due to down markets.”

In Milliman’s pessimistic projected scenario, with interest rates declining to 5.69% at the end of the year and 5.09% at the end of 2024 and with assets returning 1.8%, corporate pension funding ratios would decline to 101% at the end of 2023 and 92% at the end of 2024, according to Milliman.

Agilis reported in its pension funding update that pension discount rates last month were the highest in more than a decade. Agilis also found that pension funds, in general, maintained or slightly improved their funding status in September.

“The surge in discount rates in September resulted in a 3.5%-6.5% decrease in pension liabilities depending on duration,” Michael Clark, managing director at Agilis, said in a statement. “However, nearly all asset classes, including equities and fixed income, experienced negative returns, largely offsetting the gains in funding achieved through higher discount rates. Consequently, many pension plans are expected to see only a modest improvement in their funded status.”

Finally, WTW reported that its WTW Pension Index increased 1.4 percentage points to 109.4% in September. Like others, WTW reported that reductions in liabilities, as a result of increases in discount rates, offset negative asset returns.

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