Compliance September 29, 2022

Wells Fargo Is Targeted in ERISA Lawsuit Alleging Self-Dealing

The Wells Fargo retirement plan fiduciaries are accused of engaging in prohibited transactions and breaching their fiduciary duty to participants.

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Plaintiffs have brought an Employee Retirement Income Security Act lawsuit seeking class certification against Wells Fargo, former CEO Tim Sloan, GreatBanc Trust Company and the employee benefit review committee and its members for alleged breaches of fiduciary duty to participants saving for retirement in the Wells Fargo 401(k) and employee stock ownership plans.

The lawsuit, filed in the U.S. District Court for the District of Minnesota, alleges that Wells Fargo 401(k) plan fiduciaries engaged in “corporate self-dealing at the expense of the retirement savings of company employees.” 

“In short, the excess dividend income was used for the benefit of Wells Fargo, not for the benefit of the plan and its participants and beneficiaries,” the complaint states.  

Plaintiffs claim that during the class period—from September 27, 2016, to “the date of judgment”—the defendants breached their fiduciary duties to participants and engaged in prohibited transactions under ERISA that caused harm to plan participants by overpaying for stock in the employee stock ownership plan, the complaint states.

“Over the course of many years, defendants caused the plan to pay more than fair market value when acquiring Wells Fargo preferred stock for the ESOP portion of the plan,” the complaint states. “Each year, going back to at least 2007, up to and including 2018, the plan acquired preferred stock financed by a loan from Wells Fargo.”

Under the terms of the loan with which the stock was purchased, the plan was required to use preferred stock dividends to pay the principal and interest on the loan, the complaint says.

“But the dividend income from preferred stock owned by the plan vastly exceeded the amounts paid on the loans by tens of millions, sometimes hundreds of millions, a year,” the complaint states. “Wells Fargo took the excess dividend income and used it to meet its employer matching contribution obligations, which contributions were a contractual and ERISA liability of Wells Fargo.”

Retirement plan fiduciaries are bound by the twin principles of duty and loyalty to plan participants under ERISA.

“ERISA fiduciaries are bound to act with an ‘eye single’ to the interest of the plan participants and beneficiaries to whom they owe a duty,” the complaint states. “Defendants in this case violated that bedrock principle by favoring the economic interest of Wells Fargo over those of the plan and its participants, to whom they owe the highest duties known to the law.”

Plaintiffs have brought seven separate counts against the defendants for engaging in prohibited transactions and breach of fiduciary duty—naming Wells Fargo, GreatBanc Trust and Sloan.

“Sloan used his discretionary authority to take plan assets, reclassified dividends, for the use of Wells Fargo,” the complaint states. “Such decisions helped the profitability of the company by hundreds of millions annually, which in turn benefited Sloan through various forms of compensation.”

The complaint adds that as the firm’s CEO, “Sloan knew or should have known the plan paid more than fair market value for preferred stock because he knew dividends exceeding minimum loan payments would be used to defray Wells Fargo’s employer matching liabilities instead of inuring to the benefit of the plan, even though such dividends were impounded into the fair market value conclusion made by GreatBanc.”

According to the complaint, Wells Fargo’s 401(k) plan had approximately $40.8 billion in assets and 324,314 participants with account balances as of year-end 2018, and each year employees contribute more than $1.5 billion of income to the plan.

The lawsuit follows an investigation by the Department of Labor’s Employee Benefits Security Administration that uncovered that plan trustee GreatBanc Trust Company overpaid for the company stock purchased for the plan from 2013 through 2018.

After the investigation, the DOL reached a settlement agreement earlier this month with Wells Fargo and Company, Wells Fargo Bank and GreatBanc Trust Company.   

A Wells Fargo spokesperson says that the firm would not comment on the class action fining at this time.

Requests for comment to GreatBanc Trust were not returned.

Compliance September 29, 2022

IRS Extends Plan Amendment Deadlines for CARES Act Provisions

Deadlines have also been extended to amend plans for certain provisions of the Taxpayer Certainty and Disaster Tax Relief Act.

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The IRS has issued Notice 2022-45, extending the deadlines for amending eligible retirement plans, including an individual retirement arrangement or annuity contract, to reflect certain provisions of the Coronavirus Aid, Relief and Economic Security Act and the Taxpayer Certainty and Disaster Tax Relief Act. 

For qualified nongovernmental retirement or 403(b) plans, including individual retirement arrangements, the IRS extended to December 31, 2025 the deadline to amend the plan for provisions of section 2202 of the CARES Act, which allows qualified individuals to receive favorable tax treatment from coronavirus-related distributions from eligible retirement plans, and section 302 of the Tax Relief Act, which provides favorable tax treatment to qualified individuals who took qualified disaster distributions from eligible retirement plans. Deadlines for sections of the CARES Act had previously been extended earlier this year.  

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The plan amendment deadline for CARES Act and Tax Relief Act provisions for a qualified governmental plan is 90 days after the close of the third regular legislative session of the legislative body with the authority to amend the plan that begins after December 31, 2023. 

In general, for a 403(b) plan that is not maintained by a public school, the deadline to amend a plan is December 31, 2025. For a 403(b) plan that is maintained by a public school, the deadline is 90 days after the close of the third regular legislative session of the legislative body with the authority to amend the plan that begins after December 31, 2023. 

The deadline to amend a governmental plan under section 457(b) of the Internal Revenue Code is the later of 90 days after the close of the third regular legislative session of the legislative body with the authority to amend the plan that begins after December 31, 2023, or the first day of the first plan year beginning no more than 180 days after the date of the notification by the secretary of labor that the plan was administered in a manner that is inconsistent with the requirements of section 457(b). 

The deadline to amend the trust governing an individual retirement account or the contract issued by an insurance company with respect to  an individual retirement annuity is December 31, 2025. 

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