Novant Health Inc., a North Carolina-based operator of 15 hospitals throughout the mid-Atlantic region, has agreed to settle an excessive fee claim for $32 million.

Filed in March 2014 in U.S. District Court for the Middle District of North Carolina, the claim alleged fiduciaries to seven retirement plans sponsored by Novant breached their fiduciary duties under the Employee Retirement Income Security Act.

Specifically, the claim alleged the plans offered unreasonably priced investment options in order to funnel excessive fees to two of the plans' service providers, Great-West Life and Annuity Insurance Co., the plans' recordkeeper, and D.L. Davis and Co., the plans' advisor.

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Novant's motion to dismiss was denied this past September.

In settling the case, Novant denied all of the allegations and maintains it its plans were administered under full compliance with ERISA.

Two of the five claims in the complaint ring familiar to previous excessive fee claims.

Novant offered retail class shares of mutual funds when "significantly cheaper, but otherwise identical institutional share class versions of the same funds (or other lower-cost alternatives) were available," according to the settlement agreement.

In fact, the plaintiffs' claim showed all 19 of the mutual funds offered to participants were retail shares, when institutional shares were available for each fund.

All told, the roughly 25,000 participants in the Novant plans held about $612 million in assets in 2008. By the end of 2009 those assets had grown to $940 million, and by 2012 the plan had $1.42 billion in assets.

"With the material increase in Plan assets in 2009 and continuing thereafter, Novant Defendants failed and continue to fail to consider institutional investment providers that cater specifically to large institutional investors like the (Novant) Plan when those large investors have over four to five million dollars to investment in a fund," alleged the plaintiffs in their original complaint.

A second claim alleged participants paid unreasonably high recordkeeping fees to Great-West, which had served as the plans' recordkeeper since 1998. Novant's fiduciaries had not put out a bid for recordkeeping services in that time.

In 2009, Great-West received $195,899 in direct fees for recordkeeping services.

In 2010 that compensation jumped to more than $2.4 million; in 2011 participants paid $3.7 million in recordkeeping fees, or almost $150 per participant, when a per-participant rate of $35 would have been reasonable for the size of the Novant plans, alleged the plaintiffs.

But other alleged claims in the complaint make the Novant suit unique to many of its excessive-fee predecessor cases.

In spite of providing only "limited marketing and enrollment services" to participants, D.L Davis and Co., the broker that served as advisor to the firm, captured millions in commissions, far beyond the value of the actual services it provided, according to the plaintiffs' claim.

In 2010 the firm was compensated about $779,000. By the next year that jumped to nearly $2 million, and in 2012 the firm's commissions were almost $6 million.

Thomas Clark, an ERISA attorney with the Wagner Group and publisher of Fiduciary Matters Blog, noted that the speed with which the settlement was reached is "uncommon."

The severity of the allegations in the Novant claim "may have had a strong influence on the early settlement," wrote Clark.

Beyond the unusually high costs participants incurred, Clark wrote that plaintiffs alleged Derrick Davis, principal and owner of D.L. Davis and Co., had business and land development relationships with Novant that appeared to conflict with his role as an advisor to the plan.

The plaintiffs also accused Davis of giving Novant more than $5 million in gifts, via a development company he owned, which leased space to Novant, implying further evidence of a conflicted relationship.

"The facts are so unique in this case that it can't really be considered a bellwether for anything," said Clark in an interview.

"One of the lessons here is that the Novant plans grew really quickly. When you get to be a $1 billion plan or more, as a fiduciary to that plan, you have to know that you command the market," explained Clark.

Instead of benefiting from its size, participants in Novant plans incurred greater costs as the plans grew, according to the allegations.

Clark, who once was an associate at St. Louis-based Schlichter, Bogard and Denton, which represented the plaintiffs in the Novant case, doesn't think the speed with which the Novant case was settled is indicative of a trend going forward.

But he did say the case is proof that the sophistication of ERISA plaintiffs firms has caught up with the capabilities of the large law firms sponsors call to defend claims.

"When there is a lot of smoke, there usually is fire," said Clark. "Most of the claims I'm seeing are not about fishing expeditions. Plaintiffs' attorneys are now investing thousands of hours before a claim is even brought. These are complicated and expensive cases to litigate. There's too much risk and cost in making a frivolous claim."

And too much cost for sponsors to spend years battling claims that have merit, said Clark.

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Nick Thornton

Nick Thornton is a financial writer covering retirement and health care issues for BenefitsPRO and ALM Media. He greatly enjoys learning from the vast minds in the legal, academic, advisory and money management communities when covering the retirement space. He's also written on international marketing trends, financial institution risk management, defense and energy issues, the restaurant industry in New York City, surfing, cigars, rum, travel, and fishing. When not writing, he's pushing into some land or water.