Opinions March 18, 2020

March Madness and the Road to Retirement

George White, with Custodia Financial, discusses how retirement plan loan defaults can throw a wrench in retirement savings and what plan sponsors can do to prevent them.

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The National Collegiate Athletic Association’s (NCAA) winner-take-all tournament to decide the top college basketball team in the country is so exciting, with smaller schools often staging upsets over larger rivals in these single elimination contests, that the tournament has come to be referred to as “March Madness.”

The nature of sporting contests is to separate winners and losers. It’s why we watch. Because no matter how much any one person or team prepares, or how hard they try, they can still lose the game and be eliminated. Retirement planning is supposed to work differently; a successful retirement has always been presented as more of a journey that anyone can complete: Save enough money, invest wisely, and the rest will take care of itself.

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The industry often publishes material that shows how easy a successful retirement plan can be if someone just follows the rules. Save at least 10% of your pay each year. Take advantage of any and all employer matches. Invest for the long term, maybe with a diversified target-date fund (TDF) that matches the year you turn 65. Financial news website CNNMoney’s “millionaire calculator” shows that anyone can become a millionaire in 40 years by saving $500 each month and earning 6% on their investment (any employer contributions in a 401(k) style plan will only add to that total), so the math seems to check out.

A Game of Chance

The problem? Back to the basketball court for a lesson on chance. Things will happen unexpectedly during a game, such as a late turnover or an injury, that cannot be controlled for, no matter how much planning takes place. And it is these events that can cause a team to throw the playbook out the window and leave them hoping for that last big shot at the end to win the game. Sometimes these shots fall, other times they bounce off the rim. Thankfully, it’s only a game.

But chance isn’t only a factor in sports. Chance also comes into play on the road to retirement. Millions of workers reluctantly borrow from their retirement plans every year to meet unexpected financial needs, taking advantage of payroll deduction repayments and much lower rates than they might find in consumer loan markets, provided they even qualify. But chance doesn’t stop there. The CNN Money calculator assumes 40 years of uninterrupted work. Yet the Department of Labor (DOL) reported more than 20 million workers were discharged last year alone[1], losing their jobs to layoffs or other factors outside their control, such as injuries, during the strongest job market on record. It is when these two chances come together that people stop winning at retirement.

The Pension Research Council found that 86% of 401(k) loans, almost nine in 10, default after separation[2]. When that separation is involuntary, and workers are deprived of their source of income, they are not in a position to take advantage of any extended payment terms their former employer might allow. The net result, according to consulting firm Deloitte, is that an average $7,000 loan default followed by a full cash out of the remaining balance to pay taxes and penalties will forfeit up to $300,000 in future retirement value.[3] That’s a deficit you don’t come back from, especially if it happens in the “second half” of your career.

Workers with 401(k) loans that choose to change employers on their own can be expected to plan for their loan; after all, they still have income and agreed to do this when they borrowed the money. Similarly, employees without retirement plan loans that lose their jobs in a downsizing or to injury can benefit from unemployment insurance and severance benefits while they search for their next position. But the confluence of these events—when one of the 20 million workers losing his job has a retirement loan outstanding—almost certainly causes loans to default and puts retirement security in serious jeopardy.

Stopping the Madness When It Comes to Retirement Security

Fortunately, there are solutions available that can provide more retirement security to what is likely millions of workers. First, plan sponsors can offer extended post-termination loan repayment via automated clearing house (ACH) payments; however, this feature may not be feasible for workers who have lost a job and don’t have income. A better safety net for them may be the addition of low-cost loan insurance as a term in their plans’ loan policies, protecting their retirement accounts against job loss while still keeping rates low. These programs automatically protect loans as money is borrowed and repay the outstanding balance if an employee loses his job.

Fiduciaries can now eliminate the chance that millions of workers will lose out on a secure retirement for reasons outside their control. Coaches cannot buy insurance to protect their teams against a late game injury. I guess that’s one reason they call it madness.

 

George White is chief operations officer at Custodia Financial, which offers a product, Retirement Loan Eraser, that helps prevent 401(k) plan loan defaults before they occur. Previously, George held management positions at the Newport Group, RNC Capital and Fidelity Investments.

This article was written prior the announcement by the NCAA to cancel this year’s March Madness basketball tournament.

This feature is to provide general information only, does not constitute legal or tax advice, and cannot be used or substituted for legal or tax advice. Any opinions of the author do not necessarily reflect the stance of Institutional Shareholder Services or its affiliates.

[1] https://www.bls.gov/jlt/

[2] “Borrowing from the Future: 401(k) Plan Loans and Loan Defaults,” Wharton/Vanguard Study, 2014

[3] “Loan leakage: How can we keep loan defaults from draining $2 trillion from America’s 401(k) accounts?”, Deloitte, October, 2018.

Compliance March 17, 2020

New Lawsuit Accuses Wells Fargo 401(k) Plan Fiduciaries of Self-Dealing

Motives behind keeping higher cost, underperforming funds in plan alleged in the lawsuit include providing seed money for Wells Fargo to launch new fund products.

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A proposed class action lawsuit has been filed against alleged fiduciaries of the Wells Fargo & Co. 401(k) plan alleging violations of Employee Retirement Income Security Act (ERISA) fiduciary duty and prohibited transaction provisions.

The complaint says that as of December 31, 2018, the plan had approximately $40 billion in assets and 344,287 participants, making it one of the largest defined contribution (DC) retirement plans in the country. “Combined with the investment sophistication of all the plan fiduciaries and their unique access to information, the plan and its fiduciaries have enormous bargaining power to receive superior investment products and services at extraordinarily low cost,” it states.

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But the plaintiff says the retirement plan committee defendants failed to satisfy threshold procedural norms needed for a non-conflicted fiduciary to satisfy its duties of loyalty and prudence under ERISA. According to the complaint, the committee defendants selected and retained Wells Fargo products over materially identical, yet cheaper, non-proprietary alternatives; selected Wells Fargo products that had no performance history that could form the basis of a fiduciary’s objective decision-making process; and failed to remove proprietary funds despite sustained underperformance.

The plaintiff alleges that the committee defendants’ actions all served Wells Fargo’s interests, as the selection of proprietary investments for the plan earned Wells Fargo money, supported its asset management business and/or provided seed money for Wells Fargo to launch new fund products.

For example, the complaint says that upon the creation of the Wells Fargo/State Street Target CITs (Target Date CITs) in 2016, the committee defendants added the Target Date CITs to the plan even though the funds had no prior performance history or track record which could demonstrate that they were prudent. Despite the lack of a track record, the committee defendants “mapped” nearly $5 billion of participant retirement savings from the plan’s previous target-date option into the Target Date CITs.

The complaint notes that the Department of Labor (DOL) has advised that, “[i]n general, plan fiduciaries should engage in an objective process to obtain information that will enable them to evaluate the prudence of any investment option made available under the plan. For example, in selecting a TDF [target-date fund] you should consider prospectus information, such as information about performance (investment returns) and investment fees and expenses.” The complaint says, “The committee defendants plainly did not (and necessarily could not) meet this threshold standard, because no ‘information about performance’ existed for the brand new Target Date CITs.” The plaintiff suggests that at a minimum, a prudent fiduciary process requires a three-year performance history for an investment option prior to its inclusion in a plan.

The Target Date CITs invest the plan’s assets into other Wells Fargo funds, also collective investment trusts (CITs), such as the Wells Fargo/State Street Global Advisors Global Equity Index Fund, the Wells Fargo/State Street Global Advisors Global Bond Index Fund and the Wells Fargo/BlackRock Short-Term Investment Fund. The complaint similarly says there were insufficient track records for the plan’s fiduciaries to select them as prudent investments. It also notes that each of these three funds are Wells Fargo products that directly and/or indirectly pay fees to Wells Fargo.

The plaintiff says that at the time the committee defendants selected the Target Date CITs for the plan, “there were ample non-proprietary target-date funds available with established performance track records and lower costs than the Target Date CITs.” In addition, she claims that since inception, the Target Date CITs underperformed their benchmark by approximately 2%, causing more than $100 million in losses to participants’ retirement savings. The complaint notes that the Target Date CITs remain the default investment for participants in the plan.

The lawsuit draws attention to other Wells Fargo proprietary investments, including its Treasury Money Market Mutual Fund, which the plaintiff claims were retained in the plan, paid fees to Wells Fargo and were higher cost and/or underperforming funds.

In addition, the plaintiff says the committee defendants used the plan’s assets to seed the Wells Fargo /Causeway International Value Fund (WF International Value Fund), as evidenced by the fact that the plan’s assets constituted more than 50% of the total assets in the fund at year-end 2014. “Without such a substantial investment from the plan, Wells Fargo’s ability to market its new, untested fund would have been greatly diminished,” it states.

The plaintiff also argues that an International Value Fund offered by Causeway Capital Management as a separate account is materially identical yet cheaper than the WF International Value Fund. The expense ratio for the Causeway International Separate Account is 0.32%, while the expense ratio of WF International Value Fund is 0.556%, according to the suit. “Wells Fargo is compensated with these fees,” the complaint says.

The plaintiff notes that each of the CITs is a “common or collective trust fund of a bank,” and the Target Date CITs, Wells Fargo/Causeway International Value Fund, and the Wells Fargo Federated Total Return Bond Fund are established and governed under the Declaration of Trust, which grants Wells Fargo Bank “exclusive management, with respect to the acquisition, investment, reinvestment, holding or disposition of any securities or other property at any time held by it and constituting part of any” CIT. Through the Declaration of Trust, the committee defendants agreed that Wells Fargo Bank “may charge a reasonable fee for its management and administration of [the CITs] and withdraw the amount thereof from the [CITs].”

The lawsuit alleges that Wells Fargo Bank used its management authority over the CITs to invest the CITs and the plan assets therein into Wells Fargo/BlackRock Short-Term Investment Fund and/or the Wells Fargo Stable Return Fund (collective, “WF STIFs”), both of which pay additional fees to Wells Fargo Bank. Wells Fargo Bank also determines how much of the plan’s assets are invested in the WF STIFs and the duration for which they will remain invested.

The complaint states that the stable value fund in which the plan invests is managed by Galliard Capital Management Inc., a registered investment adviser (RIA) and a wholly-owned subsidiary of Wells Fargo. Galliard invests some of the assets within the stable value fund in the WF STIFs. The plaintiff alleges that Wells Fargo Bank used its control over the plan’s assets held in the WF STIFs to generate “float” income from uninvested cash held in these funds, and rather than remitting the “float” income earned from plan assets back to the plan, the bank keeps the “float” income for itself.

Wells Fargo told PLANSPONSOR it is reviewing the complaint but has no further comment.

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