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Your employees may be forgiven if they see a devil behind every rock when it comes to the topic of 401(k) fees. These fees — usually associated with mutual funds, often hidden to the casual observer, and divvied up in mind-boggling ways — have been at the heart of many ERISA (Employee Retirement Income Security Act)-related lawsuits in the past several years. These include ones that Deere, Caterpillar, and Wal-Mart employees levied against their respective employers, alleging that their investment options were too pricey and riddled with conflicts of interest.
Add to that the Department of Labor's multipronged efforts to improve fee disclosure from vendors and plan sponsors and a pending House of Representatives bill that would likely require more fee disclosure from sponsors to employees, and 401(k) fees may soon pose a devilish problem for employers as well.
Fee structures are complex, but by pushing vendors to specify who gets what out of precious plan assets, CFOs can gain valuable leverage. "Providers make money in different ways, and if you don't ask the right questions you may not get the full answers," says Pam Hess, director of retirement research at Hewitt Associates. "But it's not as easy as it might seem for plan sponsors to ask the right questions," which can vary by plan size and types of investments.
Many CFOs, though, maintain that fees are only one item in a complex equation. "Fees are one of seven core items on our checklist, but our decisions about which funds to use aren't heavily weighted toward them," says Steffan Tomlinson, CFO of Aruba Networks, which has a $15 million (approximately) 401(k) plan. Odyssey Logistics & Technology managed to shave 0.75% off participant fees for its approximately $5 million plan by moving to a larger service provider 18 months ago, says CFO Cosmo Alberico, but "we really didn't look at it from a cost perspective. We looked at it [from the perspective of] ensuring that we came up with a plan that meets the needs of our growing company." Alberico says that while he discussed revenue-sharing arrangements with the plan's financial adviser, he "was focused on the total fees" versus how they were divided among various administrative and investment functions.
Indeed, there's even an argument to be made that more disclosure may not be better. While plan sponsors should certainly consider the revenue-sharing arrangements that may exist between third-party administrators and mutual-fund investment managers, Hess notes that, "the total fees are what they are, and you wouldn't want employees to decide they don't want to be in an investment simply because of revenue-sharing."
Given that more disclosure is likely to be required, however, there are several steps finance executives can take to make sure their plans are ahead of the legislation and not at risk for litigation.
Getting a Better Deal
First, there's pure and simple negotiation. For companies willing to hire an adviser or devote internal manpower to the project, it is more possible than ever to push service providers to decouple administrative and management costs, and then use that data to negotiate better deals in both categories. A key factor: figuring out if the fee that an administrator takes for its work is reasonable, given the volume of assets and level of service.
One of the biggest disconnects in the business, say experts, is that fees are typically based on the volume of assets, meaning that participants pay more as their accounts grow. Since there's not necessarily a commensurate increase in the work associated with servicing larger accounts, "you should ask if there are other options for structuring fees," says Hess, including the possibility of a flat per-head fee.
The easiest way for a small plan to lower its fees is to try to get into a better share class of a mutual fund, moving from retail-priced shares to institutionally priced shares, says Donald Stone, president of Plan Sponsor Advisors, a 401(k) plan consultancy that claims it has helped clients reduce fees by up to 40% in the past year.
For maximum negotiating leverage, Stone recommends pressing the administrator to disclose how much money it needs to turn a profit on the account; lock in a rate based on that figure as you simultaneously try to shave costs in other areas. "Vendors resist, but they will do it this way," says Stone. (Very useful to this effort, Stone notes, is the benchmarking data his firm and others can provide.)
Another way for small or midsize plans to shave some fees is to consider a move from actively managed mutual funds to passively managed ones, which typically mimic a standard market index, like the S&P 500, and carry lower fees. That is the next phase that Alberico is considering, cautiously, since the verdict on which one performs better is constantly subject to change. In particular, Stone cautions that it is important to probe the risks inherent in "how [the fund] is replicating the index." He notes that the move doesn't always lower costs, particularly compared with some institutionally priced shares of actively managed funds.
Finance executives at fast-growing companies should also be on the lookout for when they might be ready for a broader — and cheaper — service arrangement. At Watkins Insurance Group, "we started our plan maybe eight years ago, when the company was under 20 people, and now we've grown to closer to 100," says Lee Rabbitt, benefits manager for the eight-office, central Texas insurance agency. The company switched recordkeepers and added an independent financial advisory firm, slashing its total costs by 30% to 40%, Rabbitt estimates, and "now we know exactly what we're paying."
Once a plan's assets exceed $100 million or so, an even more appealing option may open up: the possibility of moving away from mutual funds into similar yet lower-cost vehicles. The most popular alternative structure at the moment is known as a collective trust, or commingled funds, in which a bank combines retirement-fund assets from several employers into a trust that generally aims to mimic a given mutual-fund strategy.
Long popular with pension funds, collective trusts have taken off in the defined-contribution world since the Pension Protection Act of 2006 blessed them as qualified default investment alternatives, notes Steve Deutsch, director of collective trusts at Morningstar, which rates many of the trusts based on information voluntarily supplied by their managers. Morningstar estimates that more than $1 trillion of retirement plan assets are flowing into such vehicles right now, with some 45% of 401(k) plans already using them, according to Greenwich Associates, many for target-date fund options.
The biggest benefit of the trusts is that they have inherently lower fees than their mutual-fund counterparts because they are not marketed to a broader audience, and do not have to report to the Securities and Exchange Commission (they are overseen by banking regulators instead). According to Morningstar research, average fee differentials between institutional shares of mutual funds and collective trusts can range from 1 basis point for large blend funds to 42 basis points for large value funds. Caterpillar, in fact, added the structure to its 401(k) plan in settling with employees over allegations that its investment fees were too high.
In general, a plan needs a critical mass of assets — say, $20 million to $30 million — in a particular category to make it worthwhile to move to the structure, estimates Hess. That means it's not usually an all-or-nothing transition, but can be a gradual move from mutual funds to the trusts as assets accumulate in popular categories like large cap and stable value.
While these structures sound appealing, they face obstacles in reaching critical mass in most 401(k) plans. For one, there's the lack of transparency that comes with the absence of an SEC registration. Experts caution that these trusts may be marketed as clones of mutual funds but contain vastly different asset classes and produce different performance. Pricing may vary if the trust has substantially less in assets than a corresponding fund, and that small size may also pose liquidity issues.
Get It in Writing
In the end, though, it is important to bear in mind that fees are only one factor in decisions about which investment options to offer employees. Although "the plaintiffs' bar will try to push the envelope," ERISA ultimately requires employers to follow a prudent process, rather than pick the right funds, notes Stephen Saxon, a principal at Groom Law Group, which specializes in employee-benefits law.
Having a written process in place for considering the funds and following it is the best inoculation against expensive lawsuits, say experts. Indeed, many companies, particularly smaller ones, find it prudent to hire an independent investment adviser to advise on and document such decisions. Even if sticking to the process doesn't stop the lawsuits, it may help nip them in the bud. An appeals court affirmed a decision to drop the case against Deere, for example, on the grounds that the company had followed proper procedures. (Caterpillar, meanwhile, settled, and Wal-Mart's case is still pending, with the plaintiff now in the so-called discovery phase of trying to make a case that Wal-Mart did not follow the right selection process.)
Meanwhile, employers can look forward to more transparency in those fees, in large part thanks to the efforts of others. Besides the regulators and legislators who are working out new reporting requirements, a new private-sector group known as the Defined Contribution Institutional Investment Association, made up largely of retirement plan consultants, investment managers, and recordkeepers, has formed to advocate for more transparency. A core belief: "There's no reason why participants in defined contribution plans should experience lower performance than participants in pension plans," says Lew Minsky, executive director of the group. "We're product agnostic, but we want to make sure plan sponsors understand what their options are and don't have any artificial barriers."
Alix Stuart is senior editor for human capital and careers at CFO.