Litigators Share What They Investigate for Filing TDF Lawsuits

There’s been a recent wave of lawsuits over the target-date funds (TDFs) being offered in 401(k) plans recently.

A settlement in a lawsuit accusing Franklin Templeton of self-dealing in its 401(k) plan requires it to add a nonproprietary TDF option to the investment lineup in addition to the plan’s qualified default investment alternative (QDIA)—the LifeSmart Target Date Funds. More recently, a lawsuit was filed alleging fiduciaries of the Walgreen Profit-Sharing Retirement Plan selected and kept TDFs in the plan that underperformed their benchmarks. And, last week, retirement plan fiduciaries at Intel were accused of failing to properly monitor and evaluate “unconventional, high-risk allocation models” adopted within the company’s custom target-date funds.

On its website, litigation firm Cohen Milstein says it is investigating a number of issues concerning the selection and offering of TDFs. The firm shares what it is looking for:

Improper Investment Strategy: The firm says, “The actual investment strategy (e.g. the allocation between equities and bonds) may not be same as the fund advertised.  The fund may be pursuing a far riskier investment strategy than participants and plan sponsors are led to believe, even as plan participants near retirement.”

Excessive Fees: “The fees charged by a target-date fund may not be justified by the performance of the investment.  The fees for target-date funds can vary significantly, particularly depending on whether the fund’s fees are “layered” or the underlying investments of the fund are actively or passively managed,” Cohen Milstein says.

Self-Dealing or Imprudent Selection: The firm says, “Many providers offer a wide variety of target-date funds.  The fiduciary of the plan may have chosen the particular provider for improper reasons.  For example, where the fiduciary of the plan or the employer sponsoring the plan markets a target-date fund, it improperly chose its own target-date funds without considering whether those funds are most appropriate for its own 401(k) plan participants.”

Improper Default Selection: Where a TDF suite is the plan’s QDIA, “the fiduciary of the plan has an obligation to ensure that the target-date fund was prudently, properly, and appropriately selected.”

This should inform retirement plan sponsors that offer TDFs in their plan investment menu.

In a blog post, Carol Buckmann, an Employee Retirement Income Security Act (ERISA) attorney with Cohen & Buckmann, P.C. in New York City, offers suggestions for plan fiduciaries which she says “will probably require consulting an investment adviser and ERISA counsel for assistance.”

She recommends fiduciaries:

• Understand the basics of how TDFs work and the fees payable, including those for underlying investments;
• Study the underlying investments.  Some TDFs can include alternative investments such as real estate and some will continue to alter the mix of investments after the assumed retirement age;
• Understand the risk profile of the investments. Make sure that it is appropriate for plan participants; and
• Benchmark TDFs for performance and fees.

She also says more plan sponsors should consider doing an actual request for proposals (RFP) for their TDFs.

“It is equally important to document the steps taken to evaluate the selected target-date funds so that there is a record to point to if a lawsuit is filed,” Buckmann concludes.