In multiple lawsuits, Fidelity Investments is being accused of charging excessive, undisclosed 401(k) fees. At issue is an “infrastructure fee” the company demands from some third-party mutual funds in return for access to Fidelity 401(k) clients. Fidelity claims the fee is not 401(k)-related. The lawsuits claim otherwise, saying the fee represents indirect compensation – a form of 401(k) fee that must disclosed in a 408b-2 fee disclosure to be legal under the Employee Retirement Income Security Act (ERISA).
One of my heroes – Jack Bogle, the founder of The Vanguard Group – died on January 16. I can’t think another person who has done more to help the average American save for retirement than Jack Bogle. Before he started an index fund revolution, it was difficult for investors with few assets to pay low fees for top mutual funds. Bogle democratized investing by making it easy for all investors – regardless of assets – to pay low fees for top funds. His guiding principle was simple: costs matter. Since fees reduce investment returns, they should be kept to a minimum.
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Employers have a fiduciary responsibility to ensure the fees paid by their 401(k) plan participants are “reasonable” and not subject to unnecessarily excessive fees. To do that job, employers must benchmark their 401(k) fees - basically, compare them to industry averages and/or fee charged by competing 401(k) providers. Sounds straightforward, but this information is hard to find and often harder to compare on an apples-to apples basis.
American Funds (“AF”) is the third largest mutual fund company in the US and a dominant provider of small business 401(k) plans. Their plans are loaded with proprietary in-house funds. While there is nothing inherently illegal or unethical about that, the situation could create a conflict of interest that results in an overpriced 401(k) plan. To confirm their 401(k) participants are not harmed by a conflict, employers must ensure their AF fees are reasonable. To do that, employers must be able to total them – so they can then be benchmarked against competing 401(k) providers. AF doesn’t make this job easy.
In a May 2018 survey by The Pew Charitable Trusts, only 19% of small to midsize employers claimed to be “very familiar” with the expenses paid by their 401(k) plan, while 34% were “not at all familiar.” The remaining 47% said they were only “somewhat familiar.” These results are surprising when you consider employers have a fiduciary responsibility to pay only “reasonable” fees from 401(k) plan assets - and can be personally liable for restoring any excessive fees paid by participants.
Too many 401(k) providers make it harder than necessary for employers to total and evaluate their 401(k) plan fees for ”reasonableness” – an important fiduciary responsibility - by not charging simple fees. One of these 401(k) providers is the payroll company ADP. Two weeks ago, I described my process for totaling ADP’s 401(k) fees using their DOL-mandated 408b-2 fee disclosure. Now, I’d like to do the same thing for Paychex - ADP’s largest payroll competitor.