UBS has found itself the latest target in the growing wave of ERISA litigation surrounding the handling of forfeitures in 401(k) plans. In Czakoczi v. UBS AG et al., filed in the District of New Jersey, the allegations mirror a familiar tune: that UBS prioritized its own bottom line over the financial best interests of plan participants.
Here’s the crux of the matter—one that should make any fiduciary sit up and pay attention. UBS is accused of using plan forfeitures (those unvested amounts left behind when employees leave before vesting) to reduce its own future matching contributions. Meanwhile, plan participants continue to foot the bill for administrative expenses out of their own individual accounts. As Carol Czakoczi, a participant in the plan, points out in her complaint, this dynamic leaves employees with less money to invest or distribute when they retire.
For those of us who’ve lived in the trenches of the retirement plan industry, this lawsuit is déjà vu. We’ve seen this before—and not just with UBS. Cigna was recently sued over a similar issue, and Intuit reached a settlement after a failed motion to dismiss. And while some plan sponsors have dodged bullets in recent court decisions (Kaiser Foundation Health Plan, for example), it would be foolish for others to interpret that as a green light to carry on without carefully examining their forfeiture practices.
Let’s be clear: plan documents typically provide flexibility in how forfeitures are handled. UBS’s plan, for instance, allows forfeitures to be used either to reduce employer contributions or to pay plan expenses, “as determined by the plan Administrator in its sole discretion.” But discretion isn’t a free pass—it must be exercised prudently and solely in the interest of plan participants, as ERISA demands.
That’s where UBS, according to the complaint, failed. The plaintiff alleges that the plan administrator didn’t go through any reasoned or impartial process to determine the best use of forfeitures. The argument is that, because UBS isn’t at risk of missing its matching contributions, the logical and participant-friendly move would have been to use forfeitures to pay plan expenses.
In a plan with over $9 billion in assets and more than 32,000 participants, small decisions like these can have a massive impact. If plan participants are covering plan expenses out of their accounts, they’re effectively subsidizing UBS’s obligations—an arrangement that runs afoul of the fundamental fiduciary principles of ERISA.
The lawsuit, led by plaintiff’s firm DiCello Levitt LLP, seeks to hold UBS fiduciaries accountable and recoup what it calls “plan losses.” Time will tell whether the case survives a motion to dismiss or meets the same fate as some of the recent forfeiture cases that were tossed for insufficient claims.
But win or lose, there’s a lesson here—one I’ve preached for years. If you’re a plan sponsor or fiduciary, you mustdocument your decisions and ensure they are grounded in the best interest of your participants. When you have discretion, use it carefully and thoughtfully. Don’t default to what’s easiest or most beneficial for the company. ERISA doesn’t care about corporate convenience; it cares about fiduciary integrity.
And while UBS has declined to comment, let this be a cautionary tale for every other plan sponsor out there: treating forfeitures as a piggy bank to ease your own contributions may seem harmless—but in the ERISA world, optics matter, and so does process.
The best fiduciaries are the ones who treat their responsibilities as more than a legal duty—they treat them as a trust. That trust, once broken, is hard to repair.
