Former participants in a 401(k) profit sharing plan recently filed suit in Federal court in New Jersey seeking recovery of investment losses allocated to their accounts by the employer-sponsor. The losses were incurred when the employer imposed a special valuation date of April 30, 2020 to reflect the plan's investment losses incurred during the COVID-19 lockdown. This mid-year valuation reduced the account balances available for distribution to the former participants.

WHAT HAPPENED?

The employer in Lipshires et al v. Behan Bros. Inc. Retirement Plan maintains a 401(k) profit sharing plan with a pooled trust for investments. Plan assets were valued annually, and participants' account values and benefit distributions were based on a single year-end valuation date—at least until Lipshires and several other employees terminated employment and became eligible for distribution of their Plan benefits in mid-2019.

The former participants would normally be entitled to a benefit distribution based on the most recent December 31, 2018 valuation but because of market appreciation in early 2019, they were allowed by the employer to elect a December 31, 2019 valuation date, which they did. The former participants then requested benefits distribution forms in early January, 2020.

The employer delayed providing such forms and instead sent a letter in March, 2020 to participants advising that the Plan would implement a Special Valuation Date of April 30, 2020 as a result of the extraordinary "change" in the Plan's market valuation due to the coronavirus pandemic. The effect of implementing this Special Valuation Date was a substantial reduction in the account values of all of the former participants.

BREACH OF FIDUCIARY ALLEGATIONS

The former participants received their reduced benefit distributions in early June, 2020 and promptly filed suit alleging that the employer and Plan trustees (also employees) acted improperly in the following respects:

• They failed to follow the Plan document and unreasonably and arbitrarily delayed the benefit distributions;
• The employer was using the coronavirus pandemic as a pretext to reduce the amount of distribution to the former participants; and
• The trustees acted in a direct conflict of interest because the trustees and several of their family members also participated in the Plan and benefited by preserving trust funds for themselves.

The complaint seeks restoration of the lost benefits from the Plan and "equitable restitution" personally from the trustees of the value of the Plan accounts lost as a result of their alleged breach of fiduciary.

WHAT EMPLOYERS NEED TO KNOW

It is notable in this case that the employer and trustees were implementing a Special Valuation Date in accordance with express Plan provisions allowing them to do so.

However, this action was inconsistent with the employer's prior assurance to the former participants that they could elect a December 31, 2019 valuation date. After having done so, the employer then implemented the Special Valuation Date with the intended effect of retroactively reducing the benefits payable to the former participants. Bear in mind that employers and retirement plan trustees owe their fiduciary duties to all plan participants and beneficiaries.

WE CAN HELP

Although it remains to be seen how this case will turn out, it is clear that employers and other retirement plan fiduciaries need to proceed with extreme caution in implementing a COVID-19 related change in a plan's valuation date or any other retroactive reduction in benefits.

GCT is available to assist with any questions or concerns that you may have about changes you are considering, or have made, to your retirement plan. For additional information or to discuss your particular situation, please feel free to contact:

Andrew Williams
aswilliams@gct.law
(312.696.1373)
or
Katherine Oswald
kmoswald@gct.law
(312.696.1019)