Medical Device Manufacturer Hit With ERISA Excessive Fee Suit

The case against B. Braun Medical contains allegations similar to those in many complaints filed this year.

Law firm Capozzi Adler has filed an Employee Retirement Income Security Act (ERISA) lawsuit on behalf of former participants of the B. Braun Medical Inc. Savings Plan alleging plan fiduciaries failed in their duties to ensure investment fees were reasonable and not excessive.

B. Braun Medical told PLANADVISER it does not comment on ongoing litigation.

As with other lawsuits filed by the same law firm, the complaint also alleges that during the class period—defined as August 26, 2014, through the date of judgment—the defendants violated their ERISA fiduciary duties by “maintaining certain funds in the plan despite the availability of identical or similar investment options with lower costs and/or better performance histories.” Defendants in the lawsuit include B. Braun Medical Inc., the Board of Directors of B. Braun Medical and its members during the class period, and the retirement committee and its members.

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The lawsuit claims that, in many instances, the defendants failed to utilize the lowest cost share class for mutual funds offered in the plan, and failed to consider certain collective investment trusts (CITs) available as alternatives to the mutual funds, despite their lower fees and materially similar investment objectives. The complaint notes that in July 2019, the plan switched to collective trust versions of the T. Rowe Price target-date funds (TDFs), but says this “was too little too late as the damages suffered by plan participants to that point had already been baked in.” The use of actively managed funds versus passive funds is also called out.

The complaint reads like a copy of many suits the law firm has filed since December. One of the first was Hawkins v. Cintas Corporation. Parties in that lawsuit are currently awaiting a judge’s decision on a motion to compel arbitration.

Retirement plan sponsors have received relatively little helpful legal insight from the courts, due to the fact that many ERISA cases end with settlements, while others are dismissed early on for pleading deficiencies.

FOMC Action Cements New Normal for Rates, Inflation Outlook

The economy is always evolving, says Federal Reserve Chair Jerome Powell, and so the nation’s monetary and fiscal strategies for achieving its goals must evolve as well.


News broke this week that the U.S. Federal Open Market Committee (FOMC) has unanimously approved updates to its “Statement on Longer-Run Goals and Monetary Policy Strategy.”

FOMC watchers know the statement articulates the committee’s approach to monetary policy and serves as the foundation for its policy actions. Thus, a change to the statement, however minor, is generally viewed as a significant policy development.

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In a speech given Thursday about the updates, Federal Reserve Chair Jerome Powell said the latest statement changes reflect the evolution that has occurred in the U.S. and global economy over the past decade—and lessons learned in conducting monetary policy since the Great Recession.

“The updated statement is also intended to enhance the transparency, accountability and effectiveness of monetary policy,” Powell said.

In technical terms, among the more significant changes to the framework document are the following:

  • The FOMC has emphasized that maximum employment is “a broad-based and inclusive goal” and states that its policy decisions will be informed by its “assessments of the shortfalls of employment from its maximum level.” The original document referred instead to “deviations from its maximum level.”
  • Of particular import to retirement savers and institutional investors, on price stability, the FOMC adjusted its strategy for achieving its longer-run inflation goal of 2% by noting that it “seeks to achieve inflation that averages 2% over time.” To this end, the revised statement states that “following periods when inflation has been running persistently below 2%, appropriate monetary policy will likely aim to achieve inflation moderately above 2% for some time.”

Other updates to the strategy statement explicitly acknowledge the challenges for monetary policy posed by a persistently low interest rate environment, which has been referred to as the new normal. Simply put, the FOMC’s policy statement has come into alignment with messaging that asset managers and investment professionals have been pushing for some time now. As Powell put it, “Here in the United States and around the world, monetary policy interest rates are more likely to be constrained by their effective lower bound than in the past.”

During his speech, Powell observed how the general level of interest rates has fallen. He said estimates of the neutral federal funds rate, which is the rate consistent with the economy operating at full strength and with stable inflation, have fallen substantially, in large part reflecting a fall in the “equilibrium real interest rate,” or “r-star.”

Powell explained that this rate is not affected by monetary policy, but instead is driven by fundamental factors in the economy, including demographics and productivity growth—the same factors that drive potential economic growth. Powell noted that a big part of the explanation for the new policy is that the median estimate from FOMC participants of the neutral federal funds rate has fallen by nearly half since early 2012, from 4.25% to 2.5%.

“This decline in assessments of the neutral federal funds rate has profound implications for monetary policy,” Powell said. “With interest rates generally running closer to their effective lower bound even in good times, the Fed has less scope to support the economy during an economic downturn by simply cutting the federal funds rate. The result can be worse economic outcomes in terms of both employment and price stability, with the costs of such outcomes likely falling hardest on those least able to bear them.”

Comments already sent to PLANADVISER suggest the FOMC’s latest policy change is quite significant and reflective of a situation that has been unfolding for some time, but which has been significantly worsened by the coronavirus pandemic. Notably, comments quickly came in from leading U.S. financial services organizations, but international firms have even responded to the updates. Most commentators commend the FOMC’s actions, though some are more focused on concerns about what the impact of essentially permanent low rates might be.

Rupert Thompson, chief investment officer (CIO) at Kingswood Group, says the policy changes can be seen as a “refinement.”

“Rather than having a simple 2% inflation target as before, it is moving to an average inflation target of 2%,” he emphasizes. “It will now allow inflation to overshoot for a while following a period of undershooting, as has been the case in recent years. The Fed has also tweaked its full employment objective, increasing its tolerance of employment running at or above its maximum level. These moves were not entirely unexpected and are a bid to step up the effectiveness of its monetary policy, which is being compromised now that rates are so low.”

Echoing what seems to be the consensus among commentators, Thompson says the policy changes make it all the more likely that rates will remain at their current “exceptionally low levels” over the next few years—potentially even longer.

This possibility worries Nigel Green, CEO and founder of deVere Group.

“The Fed chief has just outlined a highly anticipated shake-up of the monetary policy of the world’s de facto central bank,” he says. “The Fed will keep interest rates at almost zero for the foreseeable future, possibly for more than five years, and it will take a more casual approach toward inflation, even championing a modest rise above their 2% target. This will add fuel to global equities, which are already on fire, having hit a record high [just this week].”

Green and others worry that, in this climate, holding bonds and cash will simply not provide the returns investors seek. This may cause them to forget about the important role that fixed-income investments play as a ballast and source of stability in long-term portfolios.

“Against this backdrop, many more will pile further into equities, which appear to be on a winning streak,” Green says. “But investors must beware of the lack of balance in the stock markets. A failure to recognize how unevenly distributed the gains are could prove to be a costly mistake. Not all stocks represent the same opportunities as others. Investors must bear this imbalance in mind.”

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