Compliance November 13, 2023

Motion Seeks to Hold Alight Liable for Theft of 401(k) Assets

Plaintiff Paula Disberry has requested the court order restoration of her $750,000 in lost assets.

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Attorneys for Paula Disberry moved for a federal court to hold Alight Solutions liable for negligence in its administration of the defined contribution plan for the Colgate-Palmolive Co.; end Disberry’s lawsuit without a trial; and restore $750,000 in retirement account funds stolen by unknown parties.

Arguing there are no facts in dispute and that a judgment should be entered, Disberry’s attorneys last week filed a motion for summary judgment that contends security protections by the defendants—Alight Solutions and the Employee Relations Committee of the Colgate-Palmolive Co.—were insufficient to safeguard retirement plan participants’ assets, according to documents filed November 8.

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Alight, which provided recordkeeping and administrative services to the plan, owed a duty of care to all participants under the Employee Retirement Income Security Act and breached that duty, the motion argued.

“Even if the Court were to determine that Alight is not a fiduciary, Alight is liable to Plaintiff because it owes a duty of care to all Plan participants, including Ms. Disberry, as intended third-party beneficiaries of its agreement to provide services to the Plan; and it breached its duty of care for all of the factual reasons discussed,” the motion stated.

The motion asked the court to rule in Disberry’s favor, order the defendants to restore to the plan her lost benefit amount plus lost investment earnings since March 2020 and allocate the funds to Disberry’s plan account.

Attorneys wrote that fraudsters’ theft of Disberry’s retirement plan benefit is a tangled tale that involved multiple attempts to access her assets, such that Alight Solutions “ignored multiple red flags,” allowing the theft to occur.

“Defendants breached their ERISA fiduciary duties by failing to implement appropriate protections to safeguard the Plan against fraud or theft,” attorneys wrote. “Alight also was aware of its vulnerabilities given its history of multiple thefts from retirement plans that used its services on its common platforms with common security protocols.”

The employee relations committee of the Colgate-Palmolive Co. sought to remove the plan sponsor from the litigation by blaming Alight Solutions for the breach in a motion for summary Judgement last month.

The case, Disberry v. Employee Relations Committee of the Colgate-Palmolive Co. et al., is being adjudicated in the U.S. District Court for the Southern District of New York. The original complaint included the Bank of New York Mellon Corp., which mailed a check for Disberry’s balance to a fraudulent address in September 2020, but its motion to dismiss the claim, on the basis it did not act as a fiduciary for the plan, was granted in December 2022.

Disberry is represented by the law offices of Renaker Scott LLP and the law offices of Brustein Law PLLC. The defendants are represented by attorneys with Groom Law Group and Jenner & Block LLP.

Representatives for neither Alight Solutions nor Disberry retuned requests for comment.

Investing November 13, 2023

Navigating ESG: Surveying the Landscape

Knowledge about ESG, integration and greenwashing remains low, according to experts at a PLANSPONSOR event.

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There is much work to be done for institutional investors to come to terms with not just how to integrate sustainable investing into their decisionmaking, but how to define it in the first place, according to panelists addressing institutional investors.

The average plan sponsor and retirement plan adviser still have difficulty understanding what investment solution falls under the category of environmental, social and governance factors, said Bonnie Treichel, founder and chief solutions officer at Endeavor Retirement, during the “Surveying the Landscape” session of PLANSPONSOR’s ESG livestream on November 8.

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Not Just a Label

“How do people really understand this?” Treichel asked. “It’s really hard, because a lot of times, I’ll ask the question about ESG and an investment lineup, and the perspective that I hear is, ‘Well, if it doesn’t say ESG in the title of the fund, or if it’s not named that, or if it doesn’t say sustainable, then we don’t have ESG in our lineup.’”

Treichel continued to say that true ESG integration, defined by the CFA Institute as ongoing consideration within an investment analysis and decisionmaking process with the aim to improve risk-adjusted returns, requires far knowledge about a fund than its title to avoid “greenwashing,” in which a company tries to appear more sustainable than it actually is.

“Distinguishing between something that has been greenwashed versus what has actual signs of integration really takes rolling up their sleeves and doing the work,” said Treichel. “I think that is really one of the big problems for the masses of advisers and plan sponsors, not having access to the tools and resources to be able to get the real issue.”

While the Department of Labor allows for ESG factors to be considered in retirement plan investment menus, it may not be easy to integrate or even know how to include them. Treichel said there remains a very large education gap that prevents average investment professionals from accurately assessing ESG considerations.

Sustainable Stock Picking

When it comes to market investing, ESG stocks are also difficult to define and benchmark, said Witold Henisz, the vice dean and faculty director of the ESG Initiative at the University of Pennsylvania’s Wharton School. But that is not necessarily uncommon in the world of equities.

“It’s very hard to ascertain what is an ESG stock in the same way as it is hard to ascertain what is the value stock, what is the growth stock,” Henisz said.

The lines get no clearer when it comes to performance of stocks that include ESG factors, which, again, isn’t necessarily any different from the rest of the market.

Henisz pointed out that research shows no on-average benefit to using an ESG strategy—but that can also be said for many other strategies, as no criteria consistently outperforms the market.

No one can provide “the formula that would help you pick the stocks that would outperform the market over the next five or 10 years—it doesn’t exist,” Henisz said. “Sometimes [it is] value stocks, sometimes growth stocks, sometimes the big industrials, sometimes the emerging markets. ESG is an overlay on top of each of those investment strategies that should allow them to do better.”

Henisz provided the example of the current Russia-Ukraine and Israel-Hamas wars. Fossil fuel stocks are going to outperform, and during that time, ESG stocks, which tend to be more environmentally considerate companies, are going to underperform.

“ESG strategies clearly don’t underperform the market,” Henisz said. “Under some periods, under some strategies, ESG strategies are going to outperform the market, and there are plenty of studies that show that for certain industries, certain years and certain datasets. Would you ever want to take that ability away from your financial adviser?”

Henisz concluded that definitions and standards will be key to navigating the future ESG landscape: “We need to have more regulation to root out greenwash and really set a standard that if you’re going to say you’re doing ESG integration, you’ve got to meet these criteria.”

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