Benefits & Executive Compensation News

Northrop Grumman Gets 401(k) Fee Class Action Trimmed

Feb. 16, 2018, 2:36 PM

Northrop Grumman Corp. defeated most claims in a class action challenging its 401(k) plan fees, but individual employees who sat on the company’s benefits committee may still be on the hook.

The 21 individual committee members—and not Northrop itself—were the ones who exercised fiduciary control over the 401(k) plan, a federal judge ruled Feb. 15. While Northrop might be liable for failing to adequately monitor these fiduciaries, most of the lawsuit’s claims are properly brought against the committee members and not Northrop itself, the judge ruled.

The lawsuit, filed by seven former Northrop employees, accuses the defendants of charging workers between $1.7 million and $2.1 million per year in administrative fees associated with the company’s retirement plan, even though the plan was already paying millions of dollars in fees to a third-party record keeper. Under this scheme, Northrop executives had “unfettered control” over the amounts taken from the retirement plan, allowing the company to receive plan assets “in the guise of compensation” that wasn’t reasonable or necessary for the plan’s administration, the lawsuit contends. In 2017, the judge allowed some of these claims to proceed and certified the case as a class action.

This decision comes less than a year after Northrop agreed to a $16.8 million settlement in another class action challenging its retirement plan practices. The two cases, which cover different time periods, were filed by Schlichter Bogard & Denton LLP, the St. Louis-based law firm that’s led the litigation charge against 401(k) plan fees. Schlichter has secured multimillion-dollar settlements with several large companies, including Boeing Co. ($57M), Lockheed Martin Corp. ($62M), Novant Health Inc. ($32M), International Paper ($30M), and Kraft Foods Inc. ($9.5M).

Despite dismissing most fiduciary breach claims against Northrop, the judge in this case allowed the 401(k) investors to move forward with their efforts to force Northrop to turn over any profits or proceeds it kept from the allegedly improper fees. Even if Northrop doesn’t qualify as a fiduciary under the Employee Retirement Income Security Act, it may still have to make restitution for the profits earned from the alleged fiduciary breaches of others, the judge said.

Judge André Birotte Jr. of the U.S. District Court for the Central District of California wrote the decision.

Schlichter represented the 401(k) investors, along with Hill Farrer & Burrill LLP. Mayer Brown LLP represented Northrop and the committee members.

The case is Marshall v. Northrop Grumman Corp., C.D. Cal., No. 2:16-cv-06794-AB-JC, order partly granting motion to dismiss 2/15/18.

To contact the reporter on this story: Jacklyn Wille in Washington at jwille@bloomberglaw.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com

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