This article was prepared by Fred Reish, Bruce Ashton and Josh Waldbeser.
A Yale law professor is sending letters to many (perhaps thousands of) 401(k) plan sponsors telling them they may have breached their fiduciary duties because they are offering a potentially high-cost plan. For example, in one letter, he said: “Among plans of comparable size (measured by total net assets), your plan ranked worse than 78 percent of plans.” He then added, “We wanted to inform you that we are planning to publicize the results of our study in the Spring of 2014. We will make our results available to newspapers (including the New York Times and Wall Street Journal), as well as disseminate the results via Twitter with a separate hashtag for your company.”
His allegation is based on a study using data compiled by BrightScope, though we understand that BrightScope did not participate in the study. Based on what we have heard, this professor’s reliance on interpretation of the BrightScope data may have been materially mis-placed, and the study fails to take into account a number of relevant factors, such as the quantity and quality of services being provided and the complexity and design of the particular plan.
The impact of the professor’s study could be unfortunate, possibly leading to participant complaints, Congressional inquiries and even litigation. Recordkeepers, advisors and plans sponsors should take this seriously and take appropriate action. Recordkeepers should consider communicating with their plan clients about the issues and inadequacies of the analysis it applies to specific plans, and should be prepared to respond to inquiries from plan sponsors about the costs of their plans. Advisors should be talking with their plan clients about these letters and the study – and should be prepared to answer questions about their fees and the costs of the investments they recommend. And if they have not already done so, plan sponsors should obtain benchmarking data on the cost of their plans and determine if the fees and costs are reasonable relative to the services being provided.