DC Plan Use of Company Stock More Restricted

The offering of company stock in defined contribution plans has declined since 2005, according to Vanguard.

Fewer retirement plans offer employer stock and fewer plan participants hold concentrated company stock positions in their retirement savings accounts, finds a new analysis from Vanguard.

Many companies that still offer company stock in 401(k)s or other defined contribution (DC) plans now impose restrictions on the option, Vanguard notes in “Company stock in defined contribution plans: An update.” 

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Vanguard presents its analysis as an update of prior research on the changing nature of company stock in employer-sponsored retirement plans. For the research, Vanguard aggregated participant-level account balances so as to more accurately quantify the effect of company stock on the participant’s entire DC account wealth with their current plan sponsor.

This is necessary because many large employers, who are more likely to offer company stock, are also more likely to sponsor multiple DC plans. While participants at one company might have a 401(k) account with no company stock and a stand-alone ESOP, another company may offer participants a 401(k)/ESOP plan with company stock and a stand-alone profit-sharing plan with no company stock.

Accounting for this complexity, Vanguard finds the fraction of plan sponsors offering company stock experienced a 27% relative decline between December 2005 and June 2014. As the researchers note, the fraction of participants offered or investing in company stock has declined by even larger amounts. This is partly because company stock plans tend to be large, with a median participant population of 2,704, versus 236 for non-company-stock plans. Among employers actively offering company stock, 52% of actively contributing participants had an investment in company stock, Vanguard says. Overall, just 6% of sponsors are actively offering company stock to 28% of active plan participants.

Importantly, Vanguard says the percentage of participants with a concentrated stock position (greater than 20% of their total account balance) dropped by about half between 2005 and 2011.

The analysis finds one driving reason for the decline in employer stock concentration was plan design changes made by sponsors. During the time period studied about one-third of the gross starting number of company stock funds were closed to new money and/or eliminated from the plan. Closing a company stock fund to new money is often a precursor to liquidating and reinvesting assets in the company stock fund, Vanguard notes. 

Another development in company stock plans, driven by fiduciary concerns, has been the introduction of rules designed to mitigate concentrated single-stock positions. As of June 2014, about 6 in 10 organizations offering company stock either restricted contributions and/or exchanges into company stock. This represents another shift: Three years ago, 50% of organizations had company stock restrictions.

Vanguard researchers suggest plan sponsor interest in evaluating employer stock offerings has surged since June in response to the Dudenhoeffer case, in which the U.S. Supreme Court ruled fiduciaries of employee stock ownership plans (ESOPs) are not entitled to any special presumption of prudence under the Employee Retirement Income Security Act (ERISA).

In its sample, participants in plans with access to company stock are more likely to be male, Vanguard explains. The median equity allocation of participants in plans with company stock was higher by five percentage points—86% in plans with company stock versus 81% for plans not offering company stock.

Other findings show company stock plans tend to be more generous and well-funded than non-company-stock plans. Median account balances are higher in company stock plans, Vanguard says, as are median employee and employer contributions.

One reason for the greater generosity of company stock plans is the prevalence of employer matching or other employer contributions. Vanguard says all of the plans it analyzed that offered employer stock as an investment option offer matching contributions, compared with 83% for all Vanguard plans. Further, slightly more than half of organizations with active company stock funds make both matching and other employer contributions to participant accounts—compared with just one-third of all Vanguard plans.

The analysis of company stock offerings is based on Vanguard recordkeeping data as of June 2014, including 1,497 sponsors with 1,901 distinct DC plans. Vanguard notes that the sample has one important caveat: “Our data set is subject to survivorship bias. We are only able to examine plans and participants that have survived through June 2014. We do not observe plans and participants associated with employers that went bankrupt over the period, that were acquired by another entity (whether due to financial distress or other reasons), or that left our recordkeeping services business. For example, if a firm went bankrupt during the financial crisis of 2008–2009 and its stock became worthless, and it liquidated the plan or left our recordkeeping service business, it would not appear in our sample.”

The full report is here.

Nationwide Settles 13-Year-Old Revenue Sharing Suit

After 13 years and a number of court opinions, all granting relief in the plaintiff’s favor, Nationwide has presented a motion to settle a lawsuit over its revenue-sharing practices.

Nationwide Financial Services has filed a motion for preliminary approval of a settlement of a lawsuit filed by trustees of five qualified retirement plans alleging that the provider’s revenue-sharing arrangement with mutual funds constituted transactions prohibited by the Employee Retirement Income Security Act (ERISA).

In its motion, Nationwide says the settlement secures a number of significant changes to its business practices that will result in different investment options and enhanced disclosures for the plans and for future purchasers of Nationwide’s annuity contracts and trust platform products. Nationwide will also pay $140,000,000 to the class identified in the lawsuit.

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The suit, Haddock v. Nationwide, alleges that Nationwide violated ERISA when it kept fees that it received from nonproprietary mutual funds that it offers through its defined contribution platform. Nationwide is the third-largest writer of 401(k) contracts in the nation, the company says in its press releases.

The lead plaintiff in the action is the deferred compensation plan of Flyte Tool & Die, a plastic molding company in Bridgeport, Connecticut. The plaintiffs claim that the refunds of management fees that Nationwide received from nonproprietary mutual funds were plan assets that should have been returned to the plans. Furthermore, they allege that, in not revealing these “kickbacks,” Nationwide misrepresented the level of fees it was receiving.

By retaining the fees and not disclosing them, the plaintiffs claim Nationwide violated ERISA’s prohibited transaction and fiduciary duty rules. They say the provider purposefully chose to include outside mutual funds with high management fees in order to maximize the “undisclosed kickbacks” it received. The plaintiffs are asking for a return of these fees along with damages plus all profits that Nationwide earned on them.

 

In 2006, the U.S. District Court for the District of Connecticut denied Nationwide’s motion to dismiss the case, saying a reasonable jury could find that Nationwide Financial Services Inc. and Nationwide Life Insurance Co. were plan fiduciaries under ERISA, and the trustees deserved a chance to present further evidence against the Nationwide companies. Nationwide argued it was not subject to ERISA's prohibited transaction rules because it was not a fiduciary to the plans and because the revenue-sharing payments were not plan assets.

Nationwide offered the plans various investment options, including insurance products such as variable annuities. The variable annuity contracts allowed the plans and plan participants to invest in a variety of mutual funds selected by Nationwide. The court said, “A rational factfinder… could find that Nationwide's ability to select, remove, and replace the mutual funds available for the Plans' investment constituted discretionary authority or discretionary control respecting disposition of plan assets, and thus that Nationwide is an ERISA fiduciary.” The court also said, "The Trustees have also raised triable issues concerning whether the challenged payments constitute plan assets under a functional approach and whether, even if the revenue-sharing payments do not constitute plan assets, Nationwide's service contracts constitute prohibited transactions."

The following year, U.S. District Judge Stefan R. Underhill again turned away an attempt by Nationwide to have certain claims dismissed because they were not brought up in previous versions of the complaint. In 2008, Underhill said Nationwide’s attempt to countersue the trustees because they had the ultimate responsibility for purchasing annuity contracts and making changes to investments options, they knew of the revenue sharing payments, and they received cost-savings from those revenue sharing payments should be allowed, but warned the provider that the counterclaims would ultimately be unsuccessful.

The settlement agreement calls for substantial changes to Nationwide’s disclosure and fund selection practices, including disclosures of all fees and revenue-sharing payments, notices of fund changes, and the opportunity to transfer from certain investment products to products for which payments are credited to the plan in the form of reduced asset fees.

More details of the settlement agreement can be found in the motion for preliminary approval.

 

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