Excessive Fee Cases Continue With Lawsuit Against Cerner Corporation

An excessive fee lawsuit has been filed against Cerner Corporation, its Foundations Retirement Plan, several committees and various other alleged fiduciaries.

Repeating a number of excessive fee lawsuits filed, the complaint says the plan, which has more than $2 billion dollars in assets, qualifies as a large plan in the defined contribution (DC) plan marketplace, and, therefore, has substantial bargaining power regarding the fees and expenses charged. The lawsuit says the defendants did not try to “reduce the plan’s expenses or exercise appropriate judgment to scrutinize each investment option that was offered in the plan to ensure it was prudent.”

The plaintiffs allege that from January 21, 2014, to the present, the defendants breached their Employee Retirement Income Security Act (ERISA) fiduciary duties by failing to objectively and adequately review the plan’s investment portfolio with due care to ensure that each investment option was prudent, in terms of cost; and maintaining certain funds in the plan despite the availability of identical or similar investment options with lower costs and/or better performance histories.

In an effort to avoid the timing or standing issues that have hindered other such suits from going forward, the complaint states that the plaintiffs did not have knowledge of all material facts necessary to understand that the defendants breached their fiduciary duties and engaged in other unlawful conduct in violation of ERISA until shortly before the suit was filed. In addition, it says the plaintiffs did not have and do not have actual knowledge of the specifics of the defendants’ decision-making process with respect to the plan “because this information is solely within the possession of defendants prior to discovery.”

“Having never managed a large 401(k) plan such as the Plan, Plaintiffs lacked actual knowledge of reasonable fee levels and prudent alternatives available to such plans. Plaintiffs did not and could not review the Committee meeting minutes or other evidence of Defendants’ fiduciary decision making, or the lack thereof,” the complaint adds.

In the complaint, the plaintiffs argued that passively managed funds cost less than actively managed funds, institutional share classes cost less than investor share classes, and collective trusts and separate accounts cost less than their “virtually identical” mutual fund counterparts. They claim that the defendants knew or should have known of the existence of cheaper share classes and/or collective trusts, and should have immediately identified the prudence of transferring the plan’s funds into these alternative investments.

The complaint states that as a large plan, it had sufficient assets under management at all times during the class period to qualify for lower share classes which often have a million dollars as the minimum for a particular fund. “Investment minimums for [collective trusts] are often $10 million, but will vary,” the complaint notes.

It also accuses the defendants of failing to monitor or control the plan’s recordkeeping expenses. The lawsuit alleges the plan fiduciaries failed to track the recordkeeper’s expenses by demanding documents that summarize and contextualize the recordkeeper’s compensation, such as fee transparencies, fee analyses, fee summaries, relationship pricing analyses, cost-competitiveness analyses, and multi-practice and standalone pricing reports.

It accuses the defendants of failing to identify all fees, including direct compensation and revenue sharing being paid to the plan’s recordkeeper. “To the extent that a plan’s investments pay asset-based revenue sharing to the recordkeeper, prudent fiduciaries monitor the amount of the payments to ensure that the recordkeeper’s total compensation from all sources does not exceed reasonable levels, and require that any revenue sharing payments that exceed a reasonable level be returned to the plan and its participants,” the plaintiffs claim.

The suit alleges the defendants failed to remain informed about overall trends in the marketplace regarding the fees being paid by other plans, as well as the recordkeeping rates that are available by not conducting a request for proposals (RFP) process at reasonable intervals, and immediately if the plan’s recordkeeping expenses have grown significantly or appear high in relation to the general marketplace.

“As a direct and proximate result of the breaches of fiduciary duties alleged herein, the Plan suffered millions of dollars of losses due to excessive costs and lower net investment returns,” the complaint says.