Retirement Plan Excessive Fee Cases Continue to Move Down-Market

TriHealth Inc. has been accused of carrying high fees in its 401(k) plan, benchmarked against peer plans with an asset range of $250 million to $500 million.

A class-action lawsuit has been filed against TriHealth Inc. regarding administrative and investment fees in the TriHealth Inc. Retirement Plan.

The complaint states, “for every year between 2013 and 2017, the administrative fees charged to plan participants is greater than 90% of its comparator [, or peers’,] fees when fees are calculated as cost per participant or when fees are calculated as a percent of total assets.”

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By way of a commercially available program that the lawsuit says is commonly used by financial advisers and retirement plan fiduciaries to benchmark costs, the complaint shows that in 2017, for example, TriHealth’s plan carried a cost of 86 basis points (bps) per participant. This compares with the mean of 44 bps across 27 peer plans. As a total of plan assets, in 2017, TriHealth’s plan cost 86 bps compared with a mean of 41 bps.

“The total difference from 2013 to 2017 between TriHealth’ fees and the average of its comparators based on total number of participants is $7,001,443. The total difference from 2013 to 2017 between TriHealth’s fees and the average of its comparators based on plan asset size is $7,210,002,” the complaint states. TriHealth’s plan was benchmarked against peer plans with an asset range of $250 million to $500 million.

According to the complaint, the plaintiffs—participants in the plan—had no knowledge of how the fees charged to and paid by TriHealth plan participants stood up against any of TriHealth’s comparators.

The lawsuit also claims TriHealth plan’s fees were excessive when held up against other comparable mutual funds not offered by the plan. “By selecting and retaining the plan’s excessive cost investments while failing to adequately investigate the use of superior, lower-cost mutual funds from other fund companies that were readily available to the plan or foregoing those alternatives without any prudent reason for doing so, TriHealth caused plan participants to lose millions of dollars of their retirement savings through excessive fees,” it alleges.

TriHealth is accused of failing to employ a prudent and loyal process by not critically or objectively evaluating the cost and performance of the plan’s investments and fees in comparison with other investment options. “TriHealth selected and retained for years as plan investment options mutual funds with high expenses relative to other investment options that were readily available to the plan at all relevant times,” the complaint states.

Among other things, the lawsuit asks for an order that requires TriHealth to make good to the plan all losses resulting from each breach of fiduciary duty and to otherwise restore the plan to the position it would have occupied but for those breaches. It also requests an order to remove the fiduciaries who are accused.

When the wave of excessive fee cases began against retirement plan sponsors, most targeted large or mega plans, based on assets. However, in recent years a number of cases have been filed against so-called “small” plans. For example, the Greystar 401(k) Plan, with less than $250 million in assets, was the target of a complaint filed earlier this year. Similarly, fiduciaries of the approximately $500 million 401(k) program offered by Pioneer Natural Resources USA settled a lawsuit that was filed a year ago.

An Investing Strategy to Improve Church and Public DB Plan Funding

Currently church and public defined benefit (DB) plans focus more on returns, and their funded status is lower than for corporate plans, River & Mercantile notes in a report.

In a new paper, “Pension Investing: An Alternative Strategy for Public and Church Defined Benefit Plans,” River and Mercantile Managing Director Tom Cassara lays out the case for a new way for these types of pension plans to invest, similar to an approach that the consultancy suggests for corporate pension plans.

Cassara says he has served church pension plans for many years, but since joining River and Mercantile a year ago, he has become more conversant in the use of equity derivatives. Generally, church and public pension plans and the consultants who serve these plans are not familiar with the use of these types of instruments.

This inspired Cassara to develop a new investing approach for these types of plans consisting of an underlying fixed income investment strategy comprised of high-grade, longer-term securities that deliver higher yields, paired with equity derivatives that provide contractual exposure to the equity markets, but in a way where risk can be managed. The primary goal of this approach is to provide insurance protection against market downturns in exchange for giving up some of the upside when market returns are good.

Non-Employee Retirement Income Security Act (ERISA) church pension plans and public pension plans are managed differently than corporate pension plans that fall under ERISA, Cassara tells PLANSPONSOR. “Non-ERISA church plans are backed by the church organization, and the public plans are backed by the entity they serve, so they have a little more financial freedom,” he says. “ERISA mandates a certain funding ratio, whereas these plans have more freedom on their minimum funding to support future benefit payments. The rules regarding them tend to be a little more forgiving on minimum funding status, so they tend to be a little less funded than their corporate counterparts.”

How church and public pension plans typically invest is in a well-diversified portfolio with the objective of maximizing returns and minimizing risk through a myriad of investment styles, Cassara says. Their emphasis is more on returns than on liabilities, he explains, and they do invest in the private markets, including equity, debt and hedge funds.

“We tend to be more comfortable with an investment strategy where we hit more single than doubles [in terms of returns on the upside], in trying to avoid falling backwards into what I call a ‘death spiral,’” Cassara says. “The portfolio we have put forth is one where we have invested in high-quality fixed income vehicles, typically bonds issued by investment-grade corporations, public entities and governments, that are longer-dated and produce higher yields. That would provide a good amount of cash flow and a reasonable rate of return.

“On top of that, we would reach out to the futures market to gain equity exposure–not to ride the market’s fluctuations but to create a collar,” Cassara continues. “Each collar would be unique for each organization and designed differently.” One could provide insurance protection against a 10% decline in the equity markets, for instance, he says.

To pay for that premium, River and Mercantile proposes selling off some of the securities delivering upside.

The goals is to help church and public pension plans “be more confident about where their returns will be and to try to advance the funded status of their plans in a more measured way, with limits put in place to protect the plans from any of the downs the economy could bring,” Cassara says.

River and Mercantile has just completed its back testing on this approach and is only just now starting to discuss it with these types of pension plans, he says.

As he writes in his paper, “A vast number of pension plans rely on diversified portfolios dominated by global equity allocations and a significant percentage of alternative investments (hedge funds, private equity, private debt)—yet funding ratios have remained stagnant even in the face of the longest equity bull market in history. We believe that an investment strategy which encompasses more predictable returns and increases protection against shocks to its funded ratio via a recession or economic downturn is most prudent for plans to consider on behalf of their participants.”

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