Education Featured Articles

Qualified Plan Advisors: July Advocate Newsletter

United States Supreme Court to Hear Excessive Fee Case

We have experienced a fair amount of retirement plan litigation over the last decade. The litigation pace picked up during the COVID-19 pandemic and shows no signs of slowing down. That pace could accelerate, in fact, if the United States Supreme Court rules that plaintiffs can proceed in the Hughes v. Northwestern University suit. Although the Court will not hear oral arguments until October at the earliest, it is important for plan fiduciaries to be aware of its potential implications.

The Complaint. The nation’s most prominent ERISA litigation firm filed suit on behalf of participants in Northwestern University’s defined contribution plans. The complaint included many of the allegations common among recent retirement plan expense lawsuits, including: (i) excessive recordkeeping fees; (ii) the failure to benchmark the recordkeeping fees; and (iii) the use of expensive share classes when cheaper share classes of the plans’ investment options were also available.

Motion to Dismiss. The next part is critical: we’re not even to the point in the litigation process when the trial court would decide whether those allegations were valid. The trial court granted the defendants’ motion to dismiss, and the Seventh Circuit Court of Appeals upheld the dismissal. The plaintiffs asked the United States Supreme Court to hear their argument that the lower courts erred in dismissing the case. This request relies upon precedent in other Federal circuits that would have allowed the plaintiffs’ case to proceed to discovery.

Supreme Court Takes the Case. Before responding to that request, the Court asked the Solicitor’s Office to provide the Department of Labor’s (DOL’s) position regarding the split in the federal circuit courts and the significance of the issues. The Solicitor’s Office filed a brief reflecting its clear belief that plaintiffs should be allowed to pursue their claims and that “the question of what ERISA requires of plan fiduciaries to control expenses is important to millions of employees throughout the Nation whose retirement assets are invested in ERISA-governed plans.” The Court “granted certiorari” – thereby agreeing to receive arguments from both parties – because of the split in federal circuits’ approach and the significance of the issue.

Why Does This Case Matter? Well, it is certainly important to the plaintiffs and defendants involved in the lawsuit. But more broadly, it’s important because the most pivotal point in these large lawsuits is whether a plaintiff can survive a motion to dismiss. If it survives the motion, the looming threat of discovery is much more likely to motivate settlement negotiations. If plaintiffs cannot survive that motion, the case falls apart, and the dream of a settlement or courtroom victory goes up in smoke.

The Court is likely to establish the clearest set of principles dictating what is – and what is not – sufficient for plaintiffs to survive a motion to dismiss in a retirement plan fee lawsuit. The Court will not offer an opinion on the plaintiffs’ claims; it will simply determine whether they receive their day in court to present those claims.

What Should Fiduciaries Do Now? It would be reasonable for fiduciaries to decide not to wait for the Court’s opinion, which likely will not arrive until 2022. If the Court supports the plaintiffs’ perspective, plaintiffs will be able to move forward. Even if it does not, the DOL has shared its opinion on this type of fact pattern, and it’s quite clear the DOL is sympathetic with plan participants.

As we look around the country, the last decade of litigation has paid dividends for many plan participants. Yet many others continue to participate in plans with recordkeeping services that have not been benchmarked and/or investment options that are more expensive than they need be. Taking into account the Court’s upcoming consideration of these issues and the DOL’s position, we anticipate many plan fiduciaries will ramp up their due diligence efforts during the back half of this year. As always, those efforts shouldn’t focus too heavily on the cheapest option, but they should be on the lookout for value. Participants and fiduciaries will benefit as a result.