Settlement Details Provided in Vanderbilt 403(b) Plan Lawsuit

Aside from monetary relief, the settlement calls for Vanderbilt to issue a request for proposals (RFP) for a new recordkeeper and stipulates factors to consider when evaluating funds in the 403(b) plan’s investment menu.

The parties in a lawsuit against Vanderbilt University and its 403(b) plan fiduciaries have filed a motion for preliminary approval of a settlement agreement.

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The parties announced in February they had reached a settlement and were given until April 22 to file their motion for preliminary approval.

According to the settlement agreement, the Vanderbilt defendants will deposit $14,500,000 in an interest-bearing account to be used to pay the recoveries to class members, as well as class counsel’s attorneys’ fees and expenses, administrative expenses of the settlement, and the class representatives’ compensation as described in the settlement.

In addition, within 30 calendar days after the end of the first and second years of the settlement period, and within 30 calendar days after the conclusion of the settlement period, the Vanderbilt defendants will provide to the class counsel a list of the plan’s investment options and the fees for those investment options, as well as a copy of the investment policy statement (IPS) for the plan. No later than January 31, 2020, Vanderbilt University will communicate by email with currently employed plan participants identifying current investment options in the plan, providing a link to a disclosure of the fees and performance of the frozen annuity accounts and the current investment options, and providing contact information for the individual or entity that can facilitate a fund transfer. 

The settlement agreement also stipulates that on or before April 1, 2022, the plan’s fiduciaries shall conduct a request for proposals (RFP) for recordkeeping and administrative services for the plan to at least three qualified service providers. The RFP shall request that any proposal for basic recordkeeping services express fees on a per-participant basis.

Whether plan fiduciaries retain the current recordkeeper or a new one, they will contractually prohibit the recordkeeper from using information about  participants acquired throughout the course of providing services to the plan, to market or sell unrelated products or services to the participants unless a request for such products or services is initiated. 

The agreement also says that throughout the settlement period, the plan’s fiduciaries, when evaluating plan investment options, will consider the cost of different share classes available for the plan’s current investment options, among other factors. Vanderbilt will continue its engagement with Aon to provide ongoing investment monitoring services for the plan, or engage another investment consultant to provide a comparable or greater level of information and services.

The lawsuit claims fiduciaries of the plans breached their fiduciary duties by locking the plan into a certain stock account (CREF) and into the services of a certain recordkeeper (TIAA); engaging in prohibited transactions by locking the plan into the CREF Stock Account and the recordkeeping services of TIAA; breaching their fiduciary duties by paying unreasonable administrative fees; engaging in prohibited transactions by paying excessive administrative fees; breaching their fiduciary duties by agreeing to unreasonable investment, management, and other fees and failing to monitor imprudent investments; engaging in prohibited transactions by paying fees to certain third parties in connection with the plan’s investment in those parties’ investment options; and failing to monitor other fiduciaries.

Chief U.S. District Judge Waverly D. Crenshaw, Jr. of the U.S. District Court for the Middle District of Tennessee dismissed loyalty and prohibited transaction claims, but allowed other claims to proceed. The plaintiffs then filed an amended complaint adding a new claim related to the defendants’ alleged failure to protect plan assets by allowing third parties to market services to participants.

Analysis Shows Importance of DC Plan Fund Menu Monitoring

An analysis from Morningstar suggests monitoring defined contribution (DC) plan fund menus can have a positive impact on performance, and investment management providers weigh in on how to determine when a fund change is needed.

A Morningstar report, “Change Is a Great Thing,” finds that monitoring defined contribution (DC) plan fund menus can improve performance, although more research on why this effect occurs is warranted.

The report cites previous research which found that institutional investment managers hired to replace terminated underperforming managers perform much better before they are hired, but this outperformance disappears after they are selected.

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Morningstar researchers used a large data set of plan holdings from three different recordkeepers between January 2010 and November 2018, to investigate the monitoring value provided by plan sponsors. For each plan, a list of available funds is available at some interval, typically quarterly. They employ a matching criterion to determine when a fund is replaced within the same investment factor style based on its Morningstar Category over time. The analysis results in a sample of 3,478 replacements across 678 DC plans. They find that on average replacement funds had better historical performance and lower expense ratios, along with more-favorable comprehensive metrics such as the Morningstar Rating for funds (the “star rating”) and the Morningstar Quantitative Rating for funds, than the funds they replaced. The largest performance difference in the replacement and replaced funds is the five-year historical returns, suggesting this historical reference period is the one that carries the most weight among plan sponsors.

They also found that the future performance of the replacement fund is better than the fund being replaced at both the future one-year and three-year time periods, and that these differences are statistically significant. The outperformance persists even after controlling for expense ratios, momentum, style exposures, and other metrics commonly used by plan sponsors to evaluate funds such as the star rating and quantitative rating.

“Our findings suggest that monitoring plan menus can have a positive impact on performance,” the researchers conclude.

Jim Licato, vice president of product management at Morningstar in Chicago, and co-author of the report, tells PLANSPONSOR, “We have found, and believe it is very important, for someone to be keeping an eye on retirement plan investments—whether an investment committee or investment adviser—and make necessary changes. We found not doing so is a disservice to participants.”

He says that the prior studies did not include as robust a data set as the Morningstar analysis and that may be the reason it found different results than prior research. However, he adds, “We still have not dug through the detail about why exactly replacement funds are overperforming. It will require further research as it remains elusive as to why.

“What we can say,” Licato continues, “is that prior to replacement, plan sponsors were looking at a number of areas—past performance, expense ratios, Morningstar ratings, etc.—and all improved with the replacement fund.”

Considerations for fund replacement

Other than declining returns, Mike Goss, EVP and co-founder, Fiduciary Investment Advisors in Windsor, Connecticut, says one big factor in considering a fund for replacement for his firm is a fund manager change—whether a lead portfolio manager or a key member of that team. When this happens a fund may be put on watch because generally the manager is ultimately responsible for the funds track record and which securities to own. A fund manager change could change the fund’s track record or style, he explains.

Other factors in considering a fund for placement on a watch list or for considering a fund change is the change in ownership of the investment firm. “It’s a potential change that could lead to poor results,” Goss says. Those tasked with monitoring a DC plan’s investment menu also want to watch out for a fund style change or drift—for example, from value to growth—and for a strange in strategy or fund turnover—for example, some funds own stocks for a long time and some trade frequently. “Both can be good strategies, but if a fund changes strategy it should cause a plan fiduciary to ask why,” he says. “Plan sponsors select funds based on a certain process, style or philosophy. Any change would be a red flag.”

According to Licato, fund expenses should also be monitored to make sure they are in line with what similar funds are charging.

He says when a fund is put on a watch list, it can remain on the watch list for one quarter or a few quarters. Those monitoring the DC plan fund menu will look to see whether what triggered putting the fund on the watch list has been improved or gotten worse. If it’s gotten worse, the fund should be replaced. “There is no set number of funds that need to be replaced or put on watch. It’s more about fund monitoring and staying on top of things,” he adds.

According to Goss, his firm’s rule is that a fund cannot be on watch more than year. “There’s no law or necessary best practice, but we think a year is enough time to make a quality assessment to either maintain the fund in the DC plan investment menu or change it,” he says.

Goss warns that DC plan fiduciaries should never try to time the market. “That’s no reason to add or delete a fund. Hopefully, if they’re doing very good due diligence when they select a fund to include on the investment menu, they should not have a significant turnover of funds. We very rarely turn funds over,” he says. Goss adds that one of the things fiduciaries can outsource through a 3(38) investment manager is the ability to have the manager select, monitor and replace funds.

Licato points out that fund turnover can be disruptive for recordkeepers and participants—the paperwork and moving of assets is never a good thing from an administrative standpoint. However, he says, if a plan fiduciary is contemplating not removing a fund because it will be disruptive, it is not looking at the best interest of participants. “If it will benefit participants, do it.”

He adds that the main lesson from Morningstar’s analysis is, “Don’t’ set the investment menu on cruise control and not look at it for years. During that time there could be many red flags.”

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