A federal judge has dismissed complaints against Prudential Retirement, an employer and its adviser in an excessive fee suit.
The participant who brought the proposed class action
alleged that certain fees, including revenue-sharing payments, were
kickbacks from mutual funds to Prudential. He also claimed that the
401(k) plan sponsored by Ferguson Enterprises included too many actively
managed funds with higher fees than passively managed funds. Finally,
he also accused a program offered by Prudential called GoalMaker, an
optional program within the plan that assisted individual plan
participants in making their investment selections, of directing
participants to place their investments into higher-cost mutual funds
that engaged in revenue-sharing with Prudential, resulting in additional
compensation being paid to Prudential at the expense of the plan and
plan participants.
U.S. District Judge Victor A. Bolden of the
U.S. District Court for the District of Connecticut first determined
that Prudential was not a fiduciary with respect to the lawsuit’s
allegations. Prudential did not have the contractual authority to delete
or substitute mutual funds from its menu without first notifying
Ferguson and ensuring its consent. In addition, Bolden found that the
trust agreement strips Prudential of its discretionary authority over
its own compensation, limiting Prudential‘s compensation to the fee
schedule provided to the employer and requiring advance notice to the
employer of any changes to the agreed-upon schedule.
Concerning
Ferguson and CapFinancial (doing business as CAPTRUST), Bolden ruled
that the plaintiff has not made any allegations directly addressing the
methods used by Ferguson and CapFinancial to select investment options
for the plan. And, the plaintiff makes no allegations that the funds in
the plan underperformed, instead stating broadly that the concentration
of mutual funds imposes unwanted expenses on plan participants without
including any factual allegations regarding the availability of
lower-cost alternatives.
NEXT: Attempt to move to zero revenue-sharing not compatible with ERISA
Bolden ruled that the Ferguson
401(k) plan ultimately offered a variety of investment options that
included low-cost options, with expense ratios ranging from 0.04% to
1.02%. As of October 2014, the Ferguson Plan was offering sixteen total
investment options, fourteen of which were mutual funds. Of these
fourteen mutual funds, eleven were actively-managed and three were
passively-managed. The Ferguson Plan did include several investment
options that were made available to plan participants as alternatives to
the higher-cost actively-managed mutual funds, including a Vanguard
Institutional Index Fund, a Group Fixed Annuity option and a Prudential
Stable Value option.
Regarding the GoalMaker product, Bolden
found plan participants were provided with detailed information
regarding the exact investments included within GoalMaker along with
information pertaining to the fees involved with each of these
investments. In addition, he noted it is undisputed that the GoalMaker
program was optional for plan participants, and it did not offer any
investment selections that were not already included in the broader menu
of investment options.
Bolden added in his opinion
that, in light of the legal insufficiencies discussed in connection
with the plaintiff’s claims, further amendment of the amended complaint
would be futile. At oral argument, plaintiffs described this case as
part of a series of cases intended to move the entire industry… more and
more to zero revenue sharing, based on the notion that zero revenue
sharing is much less expensive for plans and for participants. Bolden
said these goals, however worthwhile they may be, are not compatible
with the purposes of the Employee Retirement Income Security Act
(ERISA).
“While plaintiffs seek to transform the market itself by
challenging the very framework of revenue sharing in this industry,
ERISA protects plan participants‘ reasonable expectations in the context
of the market that exists,” he wrote.
Investors Urged to Stick With Equities, Staying Confident in 2017
The year that concluded in December started with one of the
worst opening months for the equity markets on record, followed by a strong
rally in Q4 that delivered solid annual returns; what will 2017 bring?
At the beginning of each year, PLANADVISER is lucky to receive
a flood of market outlook commentary from all across the investment
services provider spectrum; the resulting mosaic of opinion presents some real
food for thought when planning the year of coverage ahead.
One of the most thorough outlooks shared annually comes from
Bob Doll, senior portfolio manager and chief equity strategist for Nuveen Asset
Management, who offers up a series of predictions pertaining to anticipated
market performance over the coming year.
Doll is quick to warn that very rarely do all of his
predictions pan out—but there are a lot of signals one can look to right now
for an idea about how the markets may behave in the months ahead, he says. Last
year he got “about eight-and-a-half out of 10 right,” including calling the Republican
sweep of the legislative and executive branches of the federal government
and predicting that markets would “muddle
their way through to positive annual returns.”
For 2017, Doll anticipates “a lasting atmosphere of optimistic
uncertainty hanging over from the bizarre election cycle we just came through.”
He pins half of the late-2016 equity rally to business optimism following the election—mainly
tied to anticipated tax reform and deregulation—while the other half of the
rally “derived from the positive macroeconomic news that emerged during Q4 but
was obscured by the election fight.”
Beyond the backward-looking data, there are clear indicators
business leadership and labor confidence are both rising, Doll continues,
leading to his first prediction: “U.S. growth will improve modestly and reach
roughly 2.5% real GDP growth after inflation.” Tied to this, Doll believes
inflation has bottomed out in the U.S., while “consumer confidence will keep
punching higher.”
Sharing another prediction, Doll suggests unemployment will continue to
fall in 2017 while wages will continue their slow climb. Treasury yields and
interest rates generally can be expected to rise, he predicts, while equity
markets “will have the most momentum during the first half of 2017, with
price-to-earnings pressure potentially emerging in the second half of the year
to dampen performance.”
“Stocks will beat bonds but there will be increasing volatility
in each asset class,” Doll feels. “Active manager performance will improve in
this environment, but the trend toward passive investing should also be
expected to continue.”
NEXT: Setting the
tone for 2017
Doll goes on to predict that the picture could shift “as
Trump Administration optimism and uncertainty fade in the face of the slow and tedious process
of actual governance.”
“Investors can be confident, but they should keep their seatbelts
on,” Doll concludes.
His commentary shares some similarities with Northern Trust’s
2017 Investment Outlook, subtitled “Upward Bound – U.S. Growth Prospects
Improve vs. Global Economy.” As Northern Trust Chief Investment Strategist Jim
McDonald and Investment Strategist Daniel Phillips explain, policy changes
resulting from the 2016 elections “could very likely nudge the U.S. economy
into a higher growth channel in 2017,” making U.S. equities and high yield
bonds more attractive than other global risk assets over the next 12 months.
“The prospect of tax cuts, regulatory reform and fiscal
stimulus by the incoming administration and Congress moved the U.S. growth
outlook from below 2% to between 2.0% and 2.5%,” McDonald and Phillips argue. “Other
developed economies are projected to grow less than 1.5% in 2017.”
According to Northern Trust’s outlook, the “primary risk
scenario” for the U.S. is higher-than-expected inflation and an aggressive
response by the Federal Reserve, with higher interest rates having the
potential to pressure equity valuations and increase market volatility.
The 2017 outlook adopts a near-term investment theme,
“Upward Bound,” to describe both the potential upside for growth, inflation and
interest rates over the next year, “and the risk that those upward movements
could put a lid on equity valuations.”
“Two populist events have occurred and they impacted markets
differently. Brexit pushed European growth estimates and global interest rates
lower, while the U.S. election had the opposite effect on the U.S. outlook,”
the Northern Trust outlook concludes. “The U.S. election appears to be a
turning point for slow growth angst in the U.S.; anecdotal evidence suggests
companies are willing to start spending. But the extrapolation to the global
picture remains uncertain.”
NEXT: Other voices,
similar messages
Zooming in on the outlook of individual retirement plan
investors presents a similarly optimistic picture.
The Wells Fargo/Gallup Investor and Retirement Optimism
Index, for example, increased heading into the new year for the third straight
quarter, bringing the year-end 2016 reading to a nine-year high. The index, which gauges individual
investor optimism, now registers +96, up from +79 in the third quarter of 2016.
Among retired investors, the optimism index improved 36
points to +117 while increasing 11 points among non-retired investors to +89. Of
the seven index components, investor optimism improved the most on the 12-month
outlook for economic growth. Fifty-seven percent of investors, up from 45% in
the third quarter, are now optimistic about economic growth, while only 27% are
pessimistic, down from 35%.
On-the-ground investors’ outlook for unemployment also
improved in the fourth quarter, with 52% feeling optimistic the metric will improve, up from 47%. Fifty-four
percent of investors are now optimistic about the stock market. That is little
changed from 51% last quarter but sharply higher than in the first quarter of
2016 when it was 32%.
“Rising investor optimism and the stock market reaching
all-time highs is great news to end the year on, but it isn’t necessarily
driving investors to put their money into the markets,” warns Scott Wren,
senior global equity strategist for Wells Fargo Investment Institute.
“Investors are more interested in the markets, but it takes time for this
optimism to translate to flows into the stock market, especially when investors
have been cautious for so long.”
When thinking about the impact of this year’s presidential
and Congressional elections, 46% of investors say the outcome of the election
makes them feel more optimistic about the U.S. economy over the next 12 months,
eclipsing the 38% who say it makes them feel less optimistic. Another 15% say
the election has had no effect on their expectations for the economy.
“There’s a reason for the optimism as the U.S. economy is
slowly chugging along. Whether the markets are experiencing a post-election or
Santa Claus rally, investors should continue to focus on the fundamentals,
valuations, and where the economy and earnings are headed over the next six to
12 months,” Wren said.
NEXT: A message for
investors
Among the other voices weighing in with 2017 outlook
commentary is Vanguard CEO Bill McNabb.
“I’m truly struck by the questions we’ve been receiving from
investors,” McNabb observes. “Never before—not even during the global financial
crisis—have investors come to us so concerned with such specific questions
about the movements of the markets and governments around the world.”
McNabb speculates this is because of the perception that we’re
living in unprecedented times.
“In that respect, we certainly can’t predict what 2017 will
bring,” he warns. “And if you know Vanguard, you should know not to expect hot
stock tips or sure bets … But I do have some suggestions for investors that I
believe are can’t lose ideas.”
First is “prepare for uncertainty.” Several political and
economic events caught observers by surprise in 2016, McNabb observes, including
the results of the Brexit vote in the United Kingdom and the presidential
election in the United States.
“Markets respond to surprises with volatility, and we expect
more surprises in 2017,” he says. With a new administration in the U.S. comes
the potential for changes to policies that affect investors. Some changes may
benefit investors; some may trigger market volatility. The best approach for
investors in any environment is to maintain a long-term perspective and a
balanced and diversified portfolio.”
In this environment, it will also be crucial to save more to
make up for any weakness in returns.
“In addition to the potential for near-term volatility, we
expect the stock and bond markets to produce lower returns in the next 10 years
than they have over the past several decades. If markets produce less, that
places the burden on investors to save more,” McNabb concludes. “We recommend
that retirement investors save 12% to 15% of their income, including any employer
match. Saving more is an asymmetrical proposition. If you don’t save enough and
the markets don’t bail you out, there’s nothing you can do. If you over save
and do well, then great—you can retire a few years earlier. “