The Number of Excessive Fee Lawsuits Grew in 2021

A recent Janus Henderson Investors webinar reviewed key defined contribution (DC) trends and developments in the retirement industry for 2021, pinpointing diversity and inclusion (D&I), retirement confidence and environmental, social and governance (ESG) investing as top highlights.

The webinar, hosted by Matthew Sommer, head of defined contribution and wealth advisor services at Janus Henderson Investors, noted that a 2020 survey of DC plan sponsors by Willis Towers Watson found close to two-thirds of respondents extended their organizations D&I efforts to their retirement plans. The study, “Moving the Needle on Defined Contribution Plans” offered four suggestions for plan sponsors to consider, including targeting specific cohorts; extending D&I to the committee composition; incorporating culture and diversity when assessing asset managers, and boosting the financial wellbeing of plan participants.

On the topic of retirement confidence, Sommer highlighted a 2021 Employee Benefit Research Institute (EBRI) Retirement Confidence Survey that found 80% of retirees say they are confident in their ability to live comfortably throughout retirement, up from 76% from March 2020. According to the survey, despite facing challenges from the coronavirus pandemic in 2020, retiree lifestyle and expenses remained largely unchanged.

Financial priorities changed among different working demographics as well, according to the EBRI study. Compared to white respondents, African American and Hispanic workers said they were more likely to consider debt a major problem and were more likely to say that a connection or commonality between them and an adviser is important. Hispanic respondents, regardless of income, were more likely to say helping friends and family in the current climate is more important to them than saving for retirement.

The webinar also examined popular legislative proposals that would impact the retirement industry and its participants. Among the bills reviewed were the Financial Factors in Selecting Retirement Plan Investments Act, introduced by Senators Tina Smith, D-Michigan, Patty Murry, D-Washington and Representative Suzan DelBene,D-Washington, and the Securing a Strong Retirement Act of 2021, also known as SECURE 2.0.

The Financial Factors in Selecting Retirement Plan Investments Act would ease the path to incorporate ESG factors into investment decisions, said Sommer, provided plans consider such investments in a prudent manner consistent with their fiduciary duties. The proposed legislation would also repeal the Department of Labor (DOL) rule finalized under the Trump Administration, as well as “limit future regulatory actions that impose unfair regulatory burdens in an effort to discourage ESG investing by ERISA [Employee Retirement Income Security Act] plans.”

Other legislative actions, including new state and city mandated automatic individual retirement account (IRA) programs, were discussed throughout the webinar. Maine, Delaware, and New York City have all enacted legislation that would require businesses of certain sizes and without an employer-sponsored retirement program to offer auto-IRAs. 

Sommer finished the panel by reviewing key developments in the retirement industry legal space. He noted how U.S. attorneys have asked the Supreme Court to review an excessive fee case involving Northwestern University, which the 7th U.S. Circuit of Appeals dismissed last year.

Sommer also noted that WakeMed Health and Hospital in Raleigh, North Carolina, agreed to settle a fiduciary breach case that included a $975,000 settlement and required the plan to conduct a request for proposal (RFP). Terms in a Columbia University settlement were also announced, which included a $13 million-dollar settlement, mandatory annual fiduciary training, rebating all revenue sharing and conducting an RFP.

A number of excessive fee lawsuits have targeted 403(b) plans, including those against Bronson Healthcare Group, Wake Forest University Baptist Medical Center and the University of Tampa.