$300,000 401(k) Plan Sued* (Note Asterisk)

A Florida optometry practice with a 401(k) plan with only $300,000 in assets is the latest plan to be sued for 401(k) mismanagement, with a newly filed lawsuit accusing the practice of over-investing in alleged “patent troll” VirnetX.

The proposed class action lawsuit alleges that the founder of Emerald Coast Eye Institute LLC, managed the company’s 401(k) investments, despite having no background or qualifications in investment management. There clearly was no financial advisor on the plan.

The founder, Dr. Samuel Poppell directed a significant portion of the plan’s assets into the stock of VirnetX, a company that allegedly specialized in acquiring patents and attempting to bring litigation against violators of those patents.

Supposedly the founder of the practice only learned of VirnetX through online message boards and blogs, not exactly the best place to get sound investment advice.

The 401(k) plan had fewer than 30 participants during the past year and ended 2015 with just over $300,000 in assets.

More than half of the Plan’s assets were invested in VirnetX stock, with the remaining assets invested in cash equivalents. The complaint states that VirnetX’s poor performance caused the plan to suffer actual losses of more than $600,000.

Before you start jumping up and down about a micro 401(k) plan being sued, it should be noted that Plan participants weren’t able to direct their own investments, so the founder of the practice dictated the investments as plan trustee. While this type of investment wouldn’t happen with participant directed 401(k) plans, it does show the lack of fiduciary responsibility by a trustee investing most of the plan’s assets in one stock.

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