Attorney Article Comments on 401(k) Fees Documentary, "The Retirement Gamble"

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Brendan Little, an attorney at the national law firm Levy Konigsberg LLP writes about a recent documentary about 401(k) fees and some legal remedies available to 401(k) participants and plan sponsors.

A significant number of 401(k) participants and their employers have successfully resorted to litigation to recover excessive 401(k) fees.

In response to a new documentary titled "The Retirement Gamble," attorney Brendan Little from the law firm of Levy Konigsberg LLP has written an article about legal remedies related to excessive 401(k) plan fees. The documentary by author Martin Smith aired on PBS's Frontline on April 23, 2013 and takes an unflattering look at the retirement savings industry in America.(1) The documentary has received significant press coverage, mainly, for publicizing the harm done by the fees charged by some service providers to 401(k) plans.(2)

As the documentary notes, the effect of the fees on an individual's retirement wealth is staggering. John Bogle, a long-time advocate of low-cost investments and founder of the Vanguard Group, explains on Frontline that a retirement fund with an average growth of 7% will have a balance that is 63% less at the end of a 50-year career if it is subject to a 2% annual fee. Also noted by Frontline, "71 percent of mutual fund savers were not even aware that they were paying any fees at all," according a recent AARP study.(3)

Responding to the documentary, Little suggests that "[o]ne option is to have your 401(k) plan reviewed by an attorney that has experience with the Employee Retirement Income Security Act (ERISA) - a federal law that governs employees' retirement accounts."

"A significant number of 401(k) participants and their employers have successfully resorted to litigation to recover excessive 401(k) fees... Changing plan service providers or negotiating lower fees can certainly reduce future costs. But neither action will recover excessive fees that have already been paid," Little says.

"In certain cases, a plan sponsor (employer) may even have a duty under ERISA to seek recovery of any unreasonable fees paid by its employees," writes Little. A new rule issued last year by the U.S. Department of Labor does require greater disclosures of fees by 401(k) service providers(4). But it also "places the burden of monitoring the fee information contained in these lengthy disclosures squarely back on employers and participants," according to Little.

The article goes on to explain that while there no bright-line rule, some red flags that might be associated with ERISA-violating 401(k) fees are:

  • The service provider offers its own funds, or an affiliate's funds, as investment options;
  • The annual fees or "expense ratios" of the plan's investment options are significantly above average for that type of investment - e.g., .77% for mutual funds, .58% for target-date funds, and .12% for index funds(5);
  • The service provider engages in "revenue sharing" agreements in which an investment fund pays back part of its fees to the service provider;
  • The plan offers few low-cost funds or only actively-managed funds;
  • The service provider charges "separate account" or "wrap" fees on top of the fees charged by an underlying investment fund;
  • The plan investment options include "retail" share classes where "institutional" shares, which have lower costs, are available.

Levy Konigsberg LLP is a national law firm with experience in ERISA matters, including the recovery of excessive 401(k) plan fees. If you are a 401(k) participant or plan sponsor and concerned about the level of fees charged by your 401(k) plan, contact us at 1-800-988-8005 or by submitting an online inquiry at the firm’s website at http://www.levylaw.com for a no-cost consultation about the legal options that may be available to recover or reduce your 401(k) plan fees.

(1) pbs.org/wgbh/pages/frontline/retirement-gamble/
(2) business.time.com/2013/04/23/retirement-gamble-how-fees-and-poor-results-destroyed-your-401k/
(3) aarp.org/work/retirement-planning/info-02-2011/401k-fees-awareness-11.html
(4) dol.gov/ebsa/newsroom/fsparticipantfeerule.html
(5) ici.org/pressroom/news/13_news_trends_expenses

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