Compliance May 13, 2020

New ERISA Excessive Fee Complaint Targets Aegis Fiduciaries

The plan in question in smaller than many that have been subject to excessive fee litigation, underscoring the trend that smaller plans are also potential targets for class action suits.

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Plaintiffs have filed a proposed class action lawsuit against Aegis Media Americas, alleging that the firm has permitted excessive fees to be levied on participants within its defined contribution (DC) retirement plan.

Filed in the U.S. District Court for the Southern District of New York, the complaint alleges a familiar host of fiduciary breaches commonly included in Employee Retirement Income Security Act (ERISA) lawsuits. What distinguishes the suit is the relatively small size of the plan in comparison with the many others that have faced similar allegations. Such plans generally have well in excess of $1 billion in assets, while the Aegis plan in question held some $540 million at the end of 2018, according to case documents, though it has presumably grown since that date.

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“As a large plan, the plan had substantial bargaining power regarding the fees and expenses that were charged against participants’ investments,” the complaint states. “Defendants, however, 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 cite ERISA Section 3(21)(A) while arguing that their plan’s fiduciaries “failed 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.” They cite the same section to support their allegations that plan fiduciaries maintained certain funds in the plan despite the availability of identical or similar investment options with lower costs and/or better performance histories.

In their complaint, the plaintiffs acknowledge that “at some point during 2018, over four years into the class period, defendants made changes to certain plan investment options, some of which are the subject of this lawsuit.” However, the plaintiffs argue, the changes came too late to prove that a prudent fiduciary monitoring process was in place.

As is common in such ERISA lawsuits, the complaint seeks to establish that its allegations are timely even under the special statute of limitations that can be applied by courts contemplating such issues. This issue was recently visited by the Supreme Court in Intel v. Sulyma and has thus featured prominently in newly filed ERISA complaints.   

“Plaintiffs did not have knowledge of all material facts (including, among other things, the investment alternatives that are comparable to the investments offered within the plan, comparisons of the costs and investment performance of plan investments versus available alternatives within similarly sized plans, total cost comparisons to similarly sized plans, information regarding other available share classes, and information regarding the availability and pricing of separate accounts and collective trusts) necessary to understand that defendants breached their fiduciary duties and engaged in other unlawful conduct in violation of ERISA until shortly before this suit was filed,” the complaint states. “Further, plaintiffs did not have and do not have actual knowledge of the specifics of defendants’ decisionmaking process with respect to the plan, including defendants’ processes (and execution of such) for selecting, monitoring and removing plan investments, because this information is solely within the possession of defendants prior to discovery.”

Another Supreme Court ruling featuring prominently in the text of the complaint is Tibble v. Edison. That 2015 decision was taken to establish clearly that the “ongoing duty to monitor” investments is a fiduciary duty that is separate and distinct from the duty to exercise prudence in the initial choice of an investment. The big practical result was that plan sponsors can no longer rely on ERISA’s statute of limitations to protect themselves from accusations of potentially imprudent investment decisions made in the past when the investment options in question persist on the menu to this day.

“A prudent fiduciary conducting an impartial review of the plan’s investments would have identified the cheaper share classes available and transferred the plan’s investments … into the lower share classes at the earliest opportunity,” the complaint states. “There is no good-faith explanation for utilizing high-cost share classes when lower cost share classes are available for the exact same investment. The plan did not receive any additional services or benefits based on its use of more expensive share classes; the only consequence was higher costs for plan participants.”

Aegis has not yet responded to a request for comment. The full text of the complaint is available here.

Opinions May 13, 2020

Embracing Radical Transparency in Benefits Communication

Helen Calvin, with Jellyvision, discusses how to create an open benefits communication strategy that results in more engaged employees.

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Employees in 2020 have more information about their workplace than ever before. Sites such as Glassdoor, Comparably and PayScale make it easy for employees to share information. This new abundance has led to a shift in power dynamics in the workplace, and employers today are much more likely to be held accountable for their decisions.

This phenomenon, referred to as “inverse influence,” is great news for the empowered, engaged workforce. It also means employers have to adjust the way they communicate with and deliver information to their employees, and one of the most important things to communicate is benefits information.

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At Jellyvision, we’ve found the most effective communication strategy for the era of inverse influence is radical transparency. Here’s how to apply the concept when communicating about your benefits plans.

1. Invite Employee Input

In the old days, employers announced benefits and employees enrolled. The process was simple, but it didn’t always serve employees’ needs and employers wasted money providing benefits that their staff didn’t care about.

Now that employees have more information about what’s being offered elsewhere and what it’s possible for employers to offer, they’ll likely have stronger opinions on their benefits.

While it’s more time-consuming, we recommend actively seeking employees’ opinions early in your planning process. By being proactive, you can demonstrate your commitment to delivering what will be most useful for the people behind your business.

2. Recognize All Employees’ Needs

As an employer, a big challenge is choosing benefits that work for the majority of employees. Without universal feedback, it’s easy to be swayed by a vocal minority with strong desires that may not align with what the majority of workers want.

However, meeting employee needs is more complicated than just getting feedback. It’s worth noting that while diverse teams make for better business performance overall, they can also be harder to plan benefits for.

An employer’s job is to make available what it can, recognize and be transparent where it isn’t offering benefits and, if it can’t provide what everyone needs, be able to explain the options each employee has.

3. Look for New Ways to Help Your Employees 

Major events such as the COVID-19 pandemic will change the way all employees think about their jobs and the benefits they provide, but you should always consider how your workforce’s needs may change in a given year.

However the current public health crisis evolves, demographic statistics show the U.S. workforce will include more older workers, women and minorities in the next four years. Those are important trends to be aware of as you plan benefits to attract the best talent available.

4. After Launch, Diagnose What’s Missing

Once benefits have been chosen and employees have had a chance to use them, employers should also be proactive about evaluating success. We’ve found that the best framework for analysis involves three levels of insight:

  1. Do employees know that benefit x exists?
  2. Do they understand what benefit x is?
  3. Is benefit x providing value?

Aim to ask these questions regularly, in a variety of settings. Ask them in employee interest groups and committees, in formal surveys and include them in informal conversations. You can then use this information to update the benefits you offer each year.

5. Be Honest and Thorough When Communicating Changes

Inverse influence can be a powerful dynamic, and it benefits both parties most when employers embrace radical transparency in their communications.

This likely means taking the time to explain …

  • How the new benefits are different from the old benefits. This will prevent confusion, which can cause undue distress.
  • Why any changes are made. This will help ensure that employees are on board–especially if the changes were made based on their feedback.
  • What trade-offs, if any, are involved. If employers aren’t transparent about trade-offs, employees may feel as if they’ve been deceived, and that’s bad news for overall happiness, engagement and productivity.

 

While you can’t expect to satisfy everyone every year, you can strive to continually improve your communications so every employee feels their voice has been heard. 

Radical Transparency Is Reciprocal

Inverse influence can lead to a good thing, and this has been proven by behavioral scientists. When employees tell their employers what they value most, they can make better financial decisions for their own budget, and businesses can better support their employees’ needs.

If employers embrace radical transparency, their employees will too, and they’ll see the returns of an open communication strategy. Whatever offerings your company adopts, radical transparency will result in an engaged workforce, with employees who are more involved with their benefits, creating a stake in the company’s well-being. This balance is good for everyone.

 

Helen Calvin is chief revenue officer at Jellyvision, makers of ALEX, a financial guidance platform that guides employees through tough choices about their savings and health benefits.

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.

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