PSNC 2024: Creating Committees of Excellence

Strong committees can serve both as a boon for participants and protection for audit and litigation risk, according to panelists at this year’s PLANSPONSOR National Conference.

When it comes to running strong retirement plan committees, organization, documentation and flexibility are some of the key strategies for plan sponsors to follow, according to a June 7 panel at this year’s PLANSPONSOR National Conference in Chicago.

Committees can be formed in all shapes and sizes depending on the size of the organization and its needs, said Julie Doran Stewart, head of fiduciary advisory services, Sentinel Group. Success comes not from following a set list of procedures, but creating the process that will best meet the plan sponsors goals and sticking to it.

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“Some of the clients I work with … tend to apply a committee charter,” Doran Stewart told the audience of plan sponsors. “That more clearly outlines not only the roles and responsibilities, but who it is that is designated to the committee and what those commitments and timing on the committee look like.”

While that size and structure may vary, Doran Stewart recommended that plan sponsors have an odd number of voting members in order to break ties.

She also recommended permanent seats for leaders in human resources and finance, with other parts of the business rotating through to best represent the employee base. Some clients, she noted, will hold separate meetings for these groups to do deep dives on either plan administration or investment decisions.

“You generally see that where there is particular expertise in those areas,” she said. “You may have people with financial expertise but not a lot of benefits experience—so it can be a better use of time to separate the two groups to focus on their areas … though it’s certainly best practice for the two committees to keep each other informed of what each is doing.”

In addition to internal members, she recommended bringing in the plan’s recordkeeper to answer questions or discuss new offerings. But there should always also be closed-door meetings in which the committee members can discuss the plan among themselves and be able to talk about the recordkeeper and other providers openly.

Committee Commitment

Benjamin L. Grosz, a partner at Ivins Phillips & Barker, noted that although plan sponsors are obligated to have a plan fiduciary and administrator, they are not legally required to have a retirement plan committee. Rather, having one is a best practice that can guide the plan in the best direction for the organization and participants as well as help mitigate risk.

“You’d be surprised,” Grosz noted, “if you look at publicly available Form 5500s, the number of plans that do not report having any committee or any named fiduciary besides the plan sponsor itself.”

A good committee should have a detailed documentation process by the plan sponsor and their adviser or consultant, if they have one, Grosz said. This recordkeeping ensures a good fiduciary process for audits or any litigation and manages turnover on the committee.

“It’s important that people know historically what happened two years ago, or why a certain change in investment or recordkeeper was made, or whatever it may be,” he said.

Judy Bobilya-Feher, chief financial officer for Aunt Millie’s Bakeries, noted that her plan committee has administrative staff from payroll and benefits in part so they can understand the “ramifications” of the plan decisions.

“When we’re talking about implementing changes, [we want them to know] what that is going to do to the payroll processes, the system, the automation, as well as the benefits side,” she said.

This coordination, she noted, helps the firm be ready to implement any big changes ahead of time. These plan committees have also, at times, included members of information technology to address concerns about cybersecurity.

Steady Training

Bobilya-Feher also noted the importance of regular communication and fiduciary training for the committee members. The training is both to help them do their jobs, but also to have a full understanding of the obligation they are taking on.

“Oftentimes there is a sense from the senior leadership team that they want to sort of insulate [employees] against the fiduciary liability of being a named committee member and therefore a fiduciary to the plan,” she said. “Making sure that they understand that is really important and comes out through fiduciary training.”

Fiduciary training should be done formally, but also be ongoing for committee members during the regular meetings, even if just a few minutes at the end, Grosz said. It can also include training for nonvoting members, who will benefit from the knowledge, as well as one-off project areas or informational sessions on new topics.

“We’ll have a special session of, say, 20 minutes on managed accounts in terms of what the fiduciary considerations [are] and what you need to know, or maybe you’re going to [collective investment trusts] for the first time,” he said. “You can have customized and tailored training along the way.”

84 Lumber Co. Retirement Plan Sued for High-Fee Investments In-Plan

A lawsuit against the Pennsylvania-based company has alleged the plan’s recordkeeper fees were higher –than average and that the plan included higher-cost investments instead of cheaper ones.

For selecting and retaining comparatively higher cost, lower yielding investment options and allowing recordkeepers to charge the plan annual fees of $60 per participant—from 2018 through 2022—Angel Runciman, employed by 84 Lumber Co., has sued the Amended and Restated Savings Fund Plan for Employees of 84 Lumber, alleging fiduciary breach of the Employee Retirement Security Act.

The 84 Lumber Co. retirement plan, 84 Lumber Company Administrative Committee of the retirement plan and individual members of the plan’s administrative committee were targeted with violating ERISA’s duty of prudence and of failure to monitor other fiduciaries, the complaint shows.

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“Defendants failed to monitor or control the grossly excessive compensation paid for recordkeeping and administrative services and had a flawed process for selecting and retaining investments and service providers,” attorneys for the plaintiff wrote in the complaint.

From 2010 until 2022, the plan’s recordkeeper was Prudential Retirement Insurance and Annuity Company, which sold this business to Empower Retirement LLC in 2021. Since 2022, Empower has served as the plan’s recordkeeper. Neither were named as defendants in the lawsuit.

The case, Runciman v. 84 Lumber Company et al., was brought in the U.S. District Court for the Western District of Pennsylvania.

The 84 Lumber Co. plan held $518.710 million in retirement plan assets for 9,932 participants, according to the most recent Form 5500 filing to the Department of Labor for the 2022 plan year.

Regarding the fees, the plaintiff’s attorneys argue in the complaint that similar-size plans charge lower per-participant fees than $60, ranging between $24 to $39 per participant.

Additionally, the complaint alleges 84 Lumber Co. retirement plan fiduciaries improperly selected and retained for the plan higher cost T. Rowe Price target-date mutual funds instead of essentially identical but lower-cost collective investment trusts with the same strategy.

“Defendants chose and/or retained the mutual fund version of the TDFs which charged fees up to 72 basis points a year versus the CIT version of the TDFs which charged just 30 basis points,” attorneys for the plaintiff wrote.

The plaintiff also argues 84 Lumber Co. fiduciaries imprudently selected and retained more expensive Class A shares of the Victory Sycamore Established Value Fund when less expensive, better performing and otherwise identical share classes of the same fund, including Class I, Class R, Class R6 shares, were available.

In 2019 Class A shares of the fund cost 89 basis points while R6 cost 57bps, shows the complaint.

Currently, Class A shares have a 90bps fee, Class R cost 66bps and Class R6 cost 54bps, show the fund’s prospectuses.

The accuser requests the court certify the lawsuit as a class action applying to all persons who were participants in or beneficiaries of the plan at any time between June 11, 2018, through the date of judgment.

The plaintiff and proposed class are represented by attorneys with the law firm Wade Kilpela Slade LLP and Muhic Law LLC. The complaint did not list attorneys for the defendants.

Neither the attorneys for the plaintiffs nor representatives for 84 Lumber Co. responded to requests for comment.

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