Multiple Providers Named in Suit on Plan Fees

The St. Louis-based law firm of Schlichter, Bogard & Denton filed a class action on behalf of participants in the retirement plans of Novant Health Inc., seeking the repayment of millions in fees and losses.

The suit names Novant’s administrative and retirement plan committees as defendants, and also implicates Great-West Life & Annuity Insurance Company, D.L. Davis & Company and MassMutual as collecting excessive compensation for services provided to Novant’s two defined contribution retirement plans. The case, Karolyn Kruger, M.D. et al., v. Novant Health Inc., et al., (case no. 14-208), was filed in the U.S. District Court for the Middle District of North Carolina.  

The complaint alleges that Novant, which is a hospital and physician office system based in Winston-Salem, North Carolina, breached its fiduciary duties by causing plan participants to pay millions of dollars in excessive recordkeeping and administrative fees to third-party service providers. In addition, the complaint alleges breaches of fiduciary duties resulting from Novant’s decision to offer imprudent investment options. These breaches resulted in a substantial reduction in the retirement assets of many plan participants, according to the compliant.

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The complaint also alleges that the Novant defendants consistently and fraudulently concealed their breaches, and the breaches of others by, in part, informing plan participants that they were not paying certain fees for the plan, but that Novant paid.

Jerry Schlichter, the lead attorney for the Novant plaintiffs, said in a statement announcing the suit that the hospital system has a duty to ensure that fees charged to its employees for retirement-related services are reasonable, that prudence is used in selecting and monitoring investment options, and that conflicts of interest and self-dealing are systematically avoided.

“It has failed in that duty,” Schlichter said.

The six plaintiffs listed by name in the suit are all residents of North Carolina and current or former employees of Novant. Regarding the providers mentioned in the suit, the complaint alleges that Great-West Life & Annuity Insurance Company, an administrative and recordkeeping service provider for the plans, received excessive compensation of approximately $8.6 million between 2009 and 2012. Additional payments received by Great-West from the investment companies providing the plan’s investment options constituted excessive amounts of revenue sharing, the compliant states, which amounted to “kick-backs.”

The complaint also alleges wrongdoing by D.L. Davis & Company, which is based in Winston-Salem and is a brokerage company that provides the Novant plans with limited marketing and enrollment services. The complaint states that D.L. Davis, under CEO and president Derrick L. Davis, was paid excessive fees up to $9.6 million between 2009 and 2012 in the form of “commissions.” The complaint states that D.L. Davis also received a second source of revenue in the form of “kick-backs” from the managers of the plan investment options. D.L. Davis is a registered broker of MML Investors Services, a subsidiary of the Massachusetts Mutual Life Insurance Co.

According to the compliant, Derrick Davis has had a long-term, ongoing relationship with Novant, starting in 1996. The complaint details that Davis, through other corporate entities he owns or controls, has entered into a variety of land development projects and office building leasing arrangements in the greater-Winston-Salem area with Novant, raising the possibility of conflicts of interest.

The complaint also highlights that early in Davis’ business relationship with Novant, he made a charitable gift to Novant in excess of $5 million. In addition, at nearly the same time that Davis reportedly gave Novant the $5 million, a Davis-owned development company in which he is an officer, manager and/or owner, East Coast Capital, announced plans to develop the Southeast Gateway project. The project included Novant Health as occupying 40,000 square feet of this office development for a call center.

The complaint points out that retirement plan fiduciaries are required to avoid self-dealing under the Employee Retirement Income Security Act (ERISA).

Novant’s retirement program consists of approximately 25,000 participants with total assets around $1.2 billion. Novant offers its employees and retirees an ERISA-ruled retirement program known as the Retirement Plus Plan. The program includes two plans, the Tax Deferred Savings Plan of Novant Health Inc., and the Savings Supplement Retirement Plan of Novant Health Inc.

Novant provided the following statement to PLANADVISER: 

“We have not been officially served with the lawsuit and cannot comment on active litigation, but overall Novant Health has a Retirement Plan Committee, which is appointed by Novant Health’s board of trustees, which carefully oversees the selection of the retirement plans’ investment options and all associated fees.
 
“The committee receives professional advice from independent legal counsel and retirement plan experts and is deeply committed to selecting and administering the investment options under the plans in the best interest of participants, all in accordance with all applicable laws and regulations. Our retirement plan participants also receive detailed explanations of their investment options and plan fees on an annual basis.”

A full copy of the compliant is available here.

When Adult Children Ask For a Loan

The delicate issue of clients who need to balance their own financial needs in retirement with the desire to help grownup children is a potentially loaded topic for advisers.

Whenever a financial issue involves a family dynamic, advisers must approach the topic with finesse, says Howard Hook, a certified financial planner (CFP) with EKS Associates in Princeton, New Jersey.

“Your answer might not be what the client wants to hear on an emotional level,” Hook tells PLANADVISER. “As much as you’d like to help your child financially, it will have a material effect on your ability to retire, which they might not want to hear.”

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The ideal way is to lay out the pros and cons of lending money, and project what could happen if there is a failure to repay the loan. People should face a worst-case scenario, Hook advises, in which they might have to work longer, change their lifestyle or their goals. Those are pretty extreme cases, he says. “Most of the time, the amount of money being lent is not material,” Hook says, “perhaps $10,000 to $20,000 for a down-payment.”

But sometimes the money is more substantial, such as an amount of $100,000, or there are multiple requests for loans. Depending on the age of the child, Hook says it might be excusable. “We call that growing into a lifestyle,” he says. People in their 20s may have to stretch a little, given their lower salaries, but they are looking to buy a bigger house. When older people ask their parents for money, it could be an emotional issue.

Hook says they acknowledge that the client is doing something nice for the child, but that the loan is creating a great deal of emotional stress, and perhaps some financial stress. “At some point the children have to stand on their own and realize that this cannot continue,” Hook says.

“We tell clients that when you lend money to family members, there is a less than 50% chance they will get the money back,” Hook says, adding that the figure is an estimate and not a statistic. “If they’re really concerned, we’ll run a cash flow projection and see what it looks like without the loan repayment.”

Fiscal Responsibility

The downside can come when someone feels they’re OK without the payback, and doesn’t push as hard for repayment, creating a situation in which the child feels he can come back repeatedly for more money. Children should have some fiscal responsibility, Hook says. When they are on their feet it is a better situation all around. Questions are sometimes more easily answered when the adviser knows the family as well as the children. Sometimes it is a client’s sibling who is asking for financial assistance.

Hook encourages clients to get a written agreement for amounts above $5,000 or $10,000. Once the money is spent, it’s gone, and the written document makes it real for both sides. Hook suggests the agreement include repayment terms and even that it specify collateral, in some cases, such as selling your business to a family member.

Often there is a disconnect between what the child thinks and what the parent thinks, according to Hook. The child might assume that the parents have the money and do not need it; the parents have more questions and more uncertainty. Some turn to an adviser to ask if they can afford to lend the money. Hook says that question really means, “I’m not sure I really want to do it. Please tell me no.”

Sometimes the parents really cannot afford to lend the money. Even if they are able to, most people feel some emotional stress in this situation when they wonder what the effect will be on their ability to retire, even though making the loan would be emotionally satisfying.

Blame the Adviser

Hook suggests that people determine if the loan will create a situation with an intolerable amount of discomfort. If that is the case, he says, they can shift the decision and say their adviser has told them they cannot afford to do it. “Now you’re moving the blame elsewhere,” he says, which can ease the family situation.
If the parent can afford to make the loan, Hook still suggests they ask themselves how their situation would look if they never received the money back. “Run a projection and ask if you are willing to make certain sacrifices, if necessary,” he says.

Is it ever a good idea to lend money to your children? Hook says there are two schools of thought. Some parents say they’re going to help their children no matter what; others stand resolute and take the position that their children need to learn for themselves, even if that means they learn from struggling in a tough situation.

On the pro side, Hook says there’s nothing nobler in life than helping a child to get started. “Money should never be something you stick under a mattress,” he says. It should be used to create value, and philanthropy often starts at home. Many people see helping a child buy a home, finance an education or extricate himself from a bad situation as positive uses of money.

If someone has more than one child, Hook says, and makes a loan to one child but not the other, what does that other child think? A loan that is not repaid becomes a gift, in a sense. “That’s a whole new topic,” Hook says. “Do you want to give equally to each? Now you are doing something for one, but not the other.”

Being asked for a loan by a family member is probably among the most emotional issues, almost akin to the stress of divorce. Sometimes, Hook says, all common sense goes out the window.

Other cons could be the stress that the loan creates for parents, and even the blow-up of a family situation. Some people see bailing a child out as enabling them, essentially teaching them that they don’t have to deal with something themselves. “At some point, we won’t be here, and they’re going to have to learn,” Hook says. “That’s a tough one.

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