Several plaintiff claims in this case have moved forward. In particular, the allegation that a prudent fiduciary would have selected one recordkeeper instead of two, was found plausible, with plaintiffs claiming that a prudent fiduciary in similar circumstances would have solicited competitive bids to arrive at one recordkeeper. Plaintiffs also claim that Brown selected expensive funds with sub-par historical performance – in particular, the CREF Stock Account, TIAA Real Estate Account and The TIAA Traditional Annuity – instead of engaging in a prudent process for selection and retention of investment vehicles for the plan. The judge allowed this claim to stand, as it raises factual issues that cannot be decided at the pleading stage. Of note, Brown argued that hindsight allegations of lagging performance are not sufficient to support the claim.
www.planadviser.com; July 17, 2018.