The New England Not-For-Profit Accounting Advisor

If you are the sponsor of a 403(b) retirement plan, you may be asking if it is possible for your organization to be sued over your retirement plan fees. Historically, lawsuits have primarily been filed against for-profit companies sponsoring 401(k) plans. But litigation from 2016 suggests not-for-profit organizations are being scrutinized for their retirement plan fees as well. The law firm Schlichter, Bogard, & Denton targeted numerous high-profile universities, including Yale University, the University of Pennsylvania, New York University, and the Massachusetts Institute of Technology on behalf of retirement plan participants who alleged their recordkeeping and investment costs were too high. Plaintiffs also alleged that there were too many investment options offered in the 403(b) plans, which created confusion, with many underperforming peer benchmarks.

As you may be aware, multiple universities were recently named in class action lawsuits relating to their retirement plans. The lawsuits allege that the institutions, and more importantly, the named fiduciaries of the plan, breached their fiduciary duties by allowing excessive fees for investments and recordkeeping and engaging in multiple recordkeepers.

They also were criticized for using restrictive and underperforming investment options for extended periods. These lawsuits demonstrate that not-for-profit organizations are not exempt from scrutiny and need to focus on fulfilling fiduciary duties and monitoring plan fees and expenses.