Recordkeeping Fee Suit Questions Revenue Sharing Arrangement

In addition to naming the company as a defendant, the lawsuit also targets members of the board of directors, as well as other officers of the firm.

Plaintiffs have filed an Employee Retirement Income Security Act excessive fee lawsuit against printing company the Taylor Corp. in the U.S. District Court for the District of Minnesota, claiming their retirement plan’s fiduciaries have failed to control recordkeeping costs charged to plan participants.

According to the complaint, at all times during the proposed class period, the plan had at least $575 million in assets under management. As of December 31, 2020, the plan had net assets of more than $877 million and 12,157 participants with account balances, according to the plaintiffs, who say the plan’s size qualifies it as a large plan in the defined contribution marketplace.

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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 lawsuit states. “The defendants, however, failed to exercise appropriate judgment and permitted the plan’s service providers to charge excessive administrative fees and expenses.”

Using arguments that closely resemble other lawsuits filed by plaintiffs represented by the increasingly active law firm Capozzi Adler, the plaintiffs here allege that the defendants breached the duties they owed to the plan and to the plaintiffs by failing to adequately monitor and control the plan’s recordkeeping costs.

The Taylor Corp. has not yet responded to a request for comment.

“The defendants’ mismanagement of the plan, to the detriment of participants and beneficiaries, constitutes a breach of the fiduciary duty of prudence, in violation of [ERISA],” the complaint states. “Their actions were contrary to actions of a reasonable fiduciary and cost the plan and its participants millions of dollars.”

Based on this alleged conduct, the plaintiffs assert claims against the defendants for breach of the fiduciary duties of prudence and failure to monitor fiduciaries. In addition to naming the company as a defendant, the lawsuit also targets members of the board of directors, as well as other officers of the firm who serve on the retirement plan’s fiduciary investment committee.

According to the text of the complaint, the plan has discretion to charge each participant for expenses of plan administration, including recordkeeping. However, the suit claims, the disclosures that are provided to plan participants fail to state the actual amount of plan administrative fees and expenses that have been or will be incurred by each participant. The suit contends that the plan sponsor and service provider have agreed upon a fee of $42 per participant annually to cover the cost of administrative services. It further states that these costs “may or may not be charged to participant accounts on a pro rata basis or a per capita basis, as the plan fiduciary chooses,” and that any charges to participant accounts may vary from year to year and are based upon the plan’s rules.

“In this case, using revenue sharing to pay for recordkeeping burdened the plan’s participants with excessive, above-market recordkeeping and administrative fees,” the lawsuit claims. “The defendants claim that Merrill Lynch agreed to a fee of $42 per participant to cover the cost of administrative services. However, as shown in the chart [included in the complaint], the plan’s per participant recordkeeping fees averaged $83.37 during the class period. There is no indication in the plan’s [Form] 5500s, auditor’s reports or participant fee disclosures that the plan ever received rebates of the recordkeeping fees in excess of $42 per participant.”

The lawsuit goes on to claim that the plan’s fiduciaries, had they acted prudently, would have negotiated recordkeeping fees in the range of $20 to $35 per participant.

The full text of the lawsuit is available here

Retirement Industry People Moves

Alerus adds senior retirement specialist; HSA Bank acquires HSA solutions provider; Innocap to acquire BNY Mellon’s HedgeMark business; and more.

HBL Expands ERISA Litigation Capabilities

Serving employer plan sponsors and benefit service provider clients in 35 states, boutique Employee Retirement Income Security Act and employment law firm Hall Benefits Law is partnering with the attorneys of Pridgen Bassett Law in a mutual of counsel arrangement.

Nancy Pridgen and Leslie Bassett, Pridgen Bassett Law partners, spent many years at Alston & Bird and King & Spalding representing clients in complex ERISA litigation matters. Litigants have many questions before and during ERISA disputes, and HBL can now directly serve plan sponsors who find themselves involved in such disputes.

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Pridgen has litigated scores of ERISA benefits claims and fiduciary cases throughout the country. She developed this expertise in ERISA litigation while at Alston & Bird, where she litigated numerous class actions and other complex litigation involving employee pension cases and welfare benefit claims.

For over 18 years, Bassett has provided personalized ERISA representation to clients on all sides of benefit matters. She has represented sponsors and fiduciaries of employee benefit plans in complex employee benefit and ERISA litigation matters in federal and state courts throughout the country, including litigation involving breaches of fiduciary duty and employer stock held in 401(k) plans.

 

Alerus Adds Senior Retirement Specialist

Alerus has announced the addition of Lodi Larson as a senior retirement specialist. In this role, she will work with advisers, third-party administrators and plan sponsors to deliver retirement plan service. She is responsible for maintaining and strengthening current and new business relationships.

Larson has more than 10 years of experience in the retirement and insurance industries, serving in roles including new business specialist and as a 3(16) administrator, where she was responsible for the day-to-day management of 250 401(k) plans. She is also the co-founder of Mackenzy’s Little Miracles, a nonprofit established to continue her daughter’s legacy of giving back and paying it forward. She is based in Des Moines, Iowa.

 

HSA Bank Acquires HSA Solutions Provider

HSA Bank has announced that its parent, Webster Financial Corp., has signed a definitive agreement to acquire Bend Financial Inc., a cloud-based health savings account solutions provider.

This investment seeks to further advance efforts to deliver differentiation to customers through a simplified and modern approach to HSA management and engagement.

“Leveraging Bend’s cloud native technology and user-centered design, HSA Bank will enhance our digital experience for clients in an engaging and intuitive way,” says HSA Bank President Chad Wilkins. “This will enable our customers to better understand the financial impact of their health care decisions to make smart choices for long-term savings.”

The Bend technology provides detailed guidance to help consumers fully understand and optimize their health savings account and the choices that affect short- and long-term financial goals.

 

Innocap to Acquire BNY Mellon’s HedgeMark Business

Innocap Investment Management Inc. has announced that it has entered into a definitive agreement to acquire BNY Mellon’s HedgeMark business to create a single technology-enabled alternative investment platform.

The consideration for the sale will be a combination of cash and Innocap shares, allowing BNY Mellon to own a minority equity stake in Innocap’s combined $50 billion global platform, which focuses on helping institutional allocators access their investments through managed account services providing customized investment solutions, meaningful control, increased transparency and operational alpha over their investment portfolios.

The firm says clients will benefit from the combined talent, scale, flexibility, technology, innovation and global presence. The transaction will combine Innocap’s global alternative investment business with BNY Mellon’s scalable HedgeMark, a hedge fund managed account platform and risk services business.

HedgeMark’s current management is expected to join the Innocap team in senior roles. Operating as an independent, focused and scalable business will advance Innocap and HedgeMark’s shared focus of offering institutional allocators a superior approach to structuring, accessing and monitoring their investments.

Innocap and BNY Mellon will continue to leverage each other’s capabilities to support the needs of clients using their respective core services, such as custody and administrative services. The transaction is subject to normal closing conditions and regulatory approval and is expected to close in the first half of 2022.

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