Participants Say Sutherland’s 401(k) Fees Aren’t Reasonable

Among other issues, the plaintiffs allege the defendants “failed to properly minimize the reasonable fees and expenses of the plan.”

A group of participants in the Sutherland Global Services Inc. 401(k) Plan has filed a proposed class action Employee Retirement Income Security Act (ERISA) lawsuit against their employer in the U.S. District Court for the Western District of New York.

The lawsuit names as defendants Sutherland Global Services Inc. and CVGAS LLC, doing business as Clearview Group. The complaint also directly names as defendants several Sutherland’s senior leaders who are plan fiduciaries, along with some 20 John and Jane Doe defendants.

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For its part, CVGAS LLC is an investment manager of the plan as defined by 29 U.S.C. 1002(38). According to the complaint, “certain responsibilities in connection with the plan” were delegated to CVGAS LLC during the proposed class period, including the responsibility to select and monitor the array of investment options to be included in the plan.

Among other issues, the plaintiffs allege the defendants “failed to properly minimize the reasonable fees and expenses of the plan.”

“Defendants instead incurred expenses that were excessive, unreasonable and/or unnecessary,” the complaint states. “Defendants failed to take advantage of the plan’s bargaining power to reduce fees and expenses. Defendants failed to offer a prudent mix of investment options. Defendants impaired participants’ returns by offering actively managed retail class mutual funds as investment options instead of identical investor class mutual funds with lower operating expenses.”

According to the complaint, to the extent any fiduciary responsibilities were properly delegated, the defendants “failed to ensure that any delegated tasks were being performed prudently and loyally in accordance with ERISA.”

The complaint continues: “Defendants failed to properly undertake the requisite monitoring and supervision of fiduciaries to whom they had delegated fiduciary responsibilities. Defendants failed to discharge their fiduciary duties with the requisite expert care, skill, prudence and diligence. Defendants enabled other fiduciaries to commit breaches of fiduciary duties for which Defendants are liable.”

The plaintiffs allege that, through this conduct, the defendants violated their fiduciary obligations under ERISA and caused damages to the plan and its participants.

“Based on defendants’ publicly available statements and representations, it appears that the total administrative expenses, not including indirect compensation, incurred by the plan in 2018 exceeded $695,000 and represented expenses of more than approximately $120 per participant,” the complaint states. “In or about mid-2019, the 13 T. Rowe Price mutual funds offered by the plan were all adviser or retail class funds, as opposed to investor or institutional class funds. The adviser or retail class T. Rowe Price funds offered by the plan charge a 12b-1 fee of .25% of the fund’s net assets. A 12b-1 fee is an annual charge for marketing or distribution. Participants of the plan derive no benefit from the 12b-1 fee. … A prudent fiduciary would have selected the investor or institutional class of the mutual funds instead of the retail class of funds with the 12b-1 fee.”

In closing, the complaint demands a jury trial, rather than the typical bench trail associated with ERISA lawsuits. The full text of the complaint is here.

Sutherland Global and Clearview Group have not yet responded to requests for comment.

The Evolving Nature of TDFs

Since their introduction, TDFs usage has grown to dominate the retirement plan investment landscape, and innovation will continue this growth.

Today, millions of workers invest their retirement savings in target-date funds (TDFs).

TDFs came to shape in the 1990s as an alternative to money market funds (MMFs), often the then default retirement vehicle. When the Pension Protection Act (PPA) was passed in 2006, it was TDFs that investors latched onto.

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“The PPA was a big motivator for TDFs, but [qualified default investment alternative (QDIA) regulations] also listed managed accounts and balanced accounts as well,” says Rich Weiss, multi-asset strategies CIO at American Century Investments. “And so, it begs the questions, why did TDFs take off as opposed to those other two?”

While traditionally, MMFs reigned as default investments, it was soon understood that these funds were not appropriate for those who were relatively unsophisticated or had little time and experience to work on their own investing. While MMFs offer less risk, there is little chance for an investor’s money to grow.

“You were almost guaranteed to not have a successful or wealthy nest egg if you left your money in an MMF, because it would lag everything else,” explains Weiss. “The government realized this and then stepped in to move the needle towards something that made more sense.”  

When TDFs, balanced funds and managed accounts were presented after the PPA, TDFs were seen as the more sophisticated option out of the three, says Weiss. It’s one-size-fits all structure attracted investors, especially those who had no interest in personalizing or tailoring their investments like a managed account would. Managed accounts were pricier and required more intervention and involvement from the participant themselves. TDFs however, were a balanced, diversified fund that presumed asset allocation is right for every type of investor, at every aspect of their life. They were easy to understand by workers, made sense to financial professionals, and were seen as an advancement over basic balanced funds.

“Historically, a participant that would be invested in a 401(k) would be inappropriately allocated to all-cash or too much equity,” says Armen Apelian, director of Target-Date Strategies at Fidelity Investments. “[The passage of PPA] allowed for our target-date offering to be the default option, with appropriate risk characteristics for age cohorts. This better prepares the participant for retirement.”

The evolution of TDFs from its introduction to today, more than 20 years later, is largely thanks to its big adoption by providers. Fidelity launched its Freedom Funds in 1996, while American Century launched its TDF suite in 2004. Most retirement plan sponsors began utilizing the funds in the early 2000s and TDF usage grew, and for participants involved in those plans, many were opted into TDFs.

“Over the years, TDFs exploded in assets and now you barely find a plan sponsor that doesn’t have a TDF as a QDIA, now it’s more of an opt-out,” says Weiss. “It’s truly a default.”

Apelian adds that while TDFs have become very simple for participants, its construction has been highly complicated. Depending on the provider and plan, each asset allocation is different. The mix of stocks, bonds and cash is a main driver in the investment outcome, so there are a diverse amount of investment vehicles or target-date providers with active building blocks, blend building blocks, and ones that may just be active and passive index funds. In thinking through this, it’s imperative to consider a TDF’s glide path, he says.

“What we’ve learned over the years is, not only is it very important to get this right, but plan sponsors should evaluate the glide path construction process when looking at target-date funds,” Apelian explains.

Looking ahead, Apelian anticipates a continued interest in target-date funds. In the past five years, he’s noticed a move from more active funds, to a mix of active and blend implemented products, as well as TDFs using collective investment trusts (CITs). CITs are priced more competitively at a larger scale.

As managed accounts increase in interest among investors, Weiss does not foresee a dip in TDF investing. While managed accounts allow for better personalization tailored to the investor, he argues that TDFs can also accommodate a worker’s unique situation and risk.

As most providers have 10-, 15- or 20-year track records with TDFs, Weiss expects to see more maturity and complexity in the future of TDFs. With multiple years of experience comes two separate economic periods: the bear market in 2008, and the 10-year bull run after the recession. Therefore, it’s not really 15 years of experience. Rather, it’s two separate episodes. This means that the industry is still fairly young. As it matures, Weiss foresees the adviser community, sponsors and providers transitioning to a more refined outlook when choosing TDF providers. Rather than looking at fees, he expects the industry will lean towards pertinence.

“The metrics for determining which TDF is most appropriate for a sponsor has yet to really evolve, and you’re going to see a lot more of that in the next couple of years,” he concludes. “It’s turning into the concept of appropriateness or suitability, as opposed to just picking a fund based on its five-year performance in fees.”

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