Tag Archives: 401k

NYU Participants File Second Excessive Fee Complaint

From Plan Sponsor Compliance Section 11/20/17.  For the full article, click here.


Participants in the New York University and related plans are making a second attempt to sue fiduciaries for excessive fees.

After a federal district court judge found most claims in an earlier complaint were not plausibly alleged by the plaintiffs, they filed a second complaint in the U.S. District Court for the Southern District of New York. This case was filed against NYU Langone Hospitals, NYU Langone Health Systems, the retirement plan committee, and several named defendants.

As with the first case, which included the university’s Faculty Plan, the participants allege that instead of using the plans’ bargaining power to reduce expenses and exercising independent judgment to determine what investments to include in the plans, the defendants squandered that leverage by allowing the plans’ conflicted third-party service providers—TIAA-CREF and Vanguard—to dictate the plans’ investment lineup, to link its recordkeeping services to the placement of investment products in the plans, and to collect unlimited asset-based compensation from their own proprietary products.

In the new complaint, the plaintiffs attempted to offer more evidence that their claims were plausible.

For example, previously, U.S. District Judge Katherine B. Forrest dismissed all of the plaintiffs’ loyalty claims, finding that the plaintiffs failed to plead sufficient facts to support the loyalty-based claims. “A plaintiff does not adequately plead a claim simply by making a conclusory assertion that a defendant failed to act ‘or the exclusive purpose of’ providing benefits to participants and defraying reasonable administration expenses; instead, to implicate the concept of ‘loyalty,’ a plaintiff must allege plausible facts supporting an inference that the defendant acted for the purpose of providing benefits to itself or someone else,” she wrote in her opinion.

Would your 401k plan survive the suit against Nordstrom?

The suit, which also names the Nordstrom 401(k) Plan Retirement Committee as being in breach of its fiduciary duty, says that while most large retirement plans have been whittling away at plan and administrative fees, Nordstrom’s “administrative fees increased by 30% from 2011 to 2016,” according to the complaint.

Nordstrom “failed to adequately and prudently manage the plan,” the complaint alleges. “It allowed unreasonable fees to be incurred by participants; it did not act prudently to lower costs; it failed to use lower cost investment vehicles; and it made inadequate disclosures on fees.”

Its a shame that, in this day and age, any employer would be in this position, as our clients understand-  it is easy to protect on this issue.  The question that will arise is can Nordstroms committee show documentation that the fees were “reasonable and necessary” for running the plan the emploiyer desired.  you don’t have to have the lowest fees, nut you do have to be conscious of them and document the decisions you make.



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Reeve Conover is a Registered Representative. Securities offered through Cambridge Investment Research, Inc., a Broker/dealer member FINRA/SPIC. Cambridge and Conover Consulting are not affiliated. Licensed in SC, NC, NY, CT, NJ, and CA.
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