The tally of universities getting hit by lawsuits over 403(b) fees and their fiduciary duty continues to go up.
On Tuesday, Sanford Heisler LLP filed a class complaint in the U.S. District Court for the Southern District of New York, claiming Columbia University breached its obligation under the Employee Retirement Income Security Act to prudently invest its employees’ retirement savings. Similar complaints have been brought against the 403(b) plans at New York University, Yale University, Duke, Johns Hopkins, the University of Pennsylvania and Vanderbilt, as well as a slightly different complaint against Massachusetts Institute of Technology’s 401(k) plan.
“Until employers recognize their duties and fulfill their duties, these cases will keep coming,” Charles Field, a partner of Sanford Heisler and co-lead counsel for the plaintiff, told ThinkAdvisor.
In a class complaint seeking $100 million in damages, Plaintiff Jane Doe, a faculty member at Columbia University and a participant of the university’s retirement plans, sued on behalf of herself and a class of 27,000 current and former Columbia University employees who participated in the plans. The complaint alleges that the university breached its fiduciary duties under ERISA.
“In these types of plans that are established under ERISA they owe a duty to their employees to not only construct an efficient plan that is cost-efficient but they also have to monitor the portfolio and dispose of any investments that are bad,” Field told ThinkAdvisor. “And we’ve looked at [Columbia] and we felt that they failed in that duty and that these people should be able to get the money back, their retirement savings that were lost to this failure to abide by ERISA.”
Columbia University, as well as University Vice President of Human Resources Dianne Kenney, who administers the plans, are named as defendants.
In a statement, Columbia University said: “Columbia is proud of the retirement benefits offered to its faculty and staff and takes its responsibility as a fiduciary seriously. Columbia does not comment on pending litigation.”
All three universities’ plans used the same two providers, which are also called recordkeepers, TIAA-CREF and Vanguard. (Although Yale consolidated to a single recordkeeper, TIAA-CREF, in April 2015.) And all the plans had more than 100 investment options for faculty.
“We looked at Columbia’s retirement plan. It’s a 403(b) plan, and we noticed that it looks like they shopped at the same tailor as the other universities,” Field told ThinkAdvisor. “They had very similar plan construction and they had the same recordkeepers. There was an overlap of the same type of funds. They weren’t identical but there was an overlap.” According to the complaint, Columbia retained expensive and poor-performing investment options that consistently underperformed their benchmarks, causing its plans and their participants to suffer hundreds of millions of dollars in losses to retirement savings. The complaint against Columbia specifically calls out TIAA-CREF Stock Account R3, which is a variable annuity, as one of the poor performers. According to the complaint, the CREF Stock Account has historically underperformed its benchmarks and other lower-cost investments that were available for inclusion in its retirement plans.
“[T]he investment performance for the TIAA-CREF Stock Account R3, which represented almost $1 billion of the plans’ assets, ranked in the bottom quartile for the past 3, 5, and 10 years for like investments according to Morningstar,” the complaint states.
The cases against NYU and Yale also specifically site this investment option (CREF Stock Account), among others.
The lawsuit against Columbia also charges that the university’s plans offer excessively duplicative investments to beneficiaries, which according to the complaint violates the industry principle that “too many choices harm participants, and can lead plan participants to ‘decision paralysis’ and selection of inferior investments.”
In addition, the complaint alleges that the plans charge excessive fees for recordkeeping, administrative and investment services, and retain excessively expensive retail share class options despite the lower-cost options available to their plans.
— Related on ThinkAdvisor:
- Suits Against NYU, Yale, Duke Over 403(b) Fees a ‘Sign of Things to Come’
- What Is Fiduciary Investment Advice Under DOL Fiduciary Rule?