Neuberger Berman 401(k) Lawsuit: Putting The Nail In The Coffin

by: Mark Hebner

Summary

Neuberger Berman is potentially on the hook for breaching their fiduciary duty to their employees through self-dealing.

The firm maintains that its fund actually outperformed the S&P 500 Index.

But the question Neuberger Berman should answer is: "How did your fund do compared to that of an index fund of a similar investment style?"

Over the last few years we have seen an increase in the number of lawsuits brought against employers for conflicts revolving in and around the retirement plans they provide for their employees. One of the most recent headlines involves New York based money manager, Neuberger Berman, who is potentially on the hook for breaching their fiduciary duty to their employees through self-dealing.

According to an article published on InstitutionalInvestor.com, "attorneys for the plaintiff claim that Neuberger breached its duty as a fiduciary by offering employees a fund that was managed in-house when an externally managed index fund tracking the Standard & Poor's 500 index would have generated better returns than VEF [Value Equity Fund], with lower fees." The Value Equity Fund is managed by Neuberger Berman, which collects fees from participants for attempting to deliver outperformance against its comparable benchmark, which in this case would be a US Large Cap Value Index.

Attorneys for Neuberger Berman responded by stating, "Bekker [plaintiff] has not established that VEF's fees were excessive, or its performance poor, because he improperly compares VEF to a passive fund with a completely different objective and investment style." They go on to state, "VEF actually outperformed the S&P 500 Index."

Now, although the attorneys for Neuberger Berman are technically correct in that VEF has a different investment objective and style than that of an S&P 500 index fund, it still doesn't address the question of, "how did your fund do compared to that of an index fund of a similar investment style?" While the plaintiff is making a very common error in comparing an actively managed fund against the S&P 500, it should not excuse Neuberger Berman answering this particular question.

There is where we at IFA are happy to assist and potentially put a nail in the coffin of Neuberger Berman's lawsuit.

Our Take on the Lawsuit

The essence of this lawsuit is like the many that came before it, which is whether or not there is a breach of fiduciary duty for an employer who offers an actively managed fund for a particular asset class and not a passive alternative for the same asset class? While we believe the answer is a resounding, "YES," we are willing to dig into the number a little bit to justify our conclusion.

Data for VEF, which is an internally managed fund by Neuberger Berman, is not available to the public, so instead we asked, "how does Neuberger Berman do as an active manager, in general?"

Fees & Expenses

Our analysis begins with an examination of the costs associated with the strategies. It should go without saying that if investors are paying a premium for investment "expertise," then they should be receiving above average results consistently over time. The alternative would be to simply accept a market's return, less a significantly lower fee, via an index fund. Our sample is based off of 28 active strategies that have at least 3 full years of performance history.

The costs we examine include expense ratios, front end (NYSE:A), level (NYSE:B) and deferred (NYSE:C) loads, and 12b-1 fees. These are considered the "hard" costs that investors incur. Prospectuses, however, do not reflect the trading costs associated with mutual funds. Commissions and market impact costs are real costs associated with implementing a particular investment strategy and can vary depending on the frequency and size of the trades taken by portfolio managers. We can estimate the amount of cost associated with an investment strategy by looking at its annual turnover ratio. For example, a turnover ratio of 100% means that the portfolio manager turns over the entire portfolio in 1 year. This is considered an active approach and investors holding these funds in taxable accounts will likely incur a higher exposure to tax liabilities to short term and long term capital gains distributions relative to that incurred by passively managed funds.

The table below details the hard costs as well as the turnover ratio for all 28 active funds offered by Neuberger Berman. You can search this page for a symbol or name by using Control F in Windows or Command F on a Mac. Then click the link to see the Alpha Chart. Also remember that this is what is considered an in-sample test, the next level of analysis is to do an out-of-sample test (for more information see here).

Fund Name Ticker Turnover Ratio % Prospectus Net Expense Ratio 12b-1 Fee Max Front Load Global Category
Neuberger Berman Multi-Cap Opp Inst NMULX 27.00 0.73 US Equity Large Cap Blend
Neuberger Berman Core Bond Inst NCRLX 240.00 0.46 US Fixed Income
Neuberger Berman Short Duration Bd Inv NSBIX 75.00 0.71 US Fixed Income
Neuberger Berman Strategic Income I NSTLX 357.00 0.80 US Fixed Income
Neuberger Berman Short Dur Hi Inc A NHSAX 45.00 1.12 0.25 4.25 High Yield Fixed Income
Neuberger Berman High Income Bond Inv NHINX 54.00 0.84 High Yield Fixed Income
Neuberger Berman Global Allocation A NGLAX 198.00 1.34 0.25 5.75 Allocation
Neuberger Berman Risk Bal Comdty Str A NRBAX 35.00 1.46 0.25 5.75 Commodities Broad Basket
Neuberger Berman Abs Ret Multi-Mgr A NABAX 433.00 2.35 0.25 5.75 Multialternative
Neuberger Berman International Eq Instl NBIIX 30.00 0.85 Global Equity Large Cap
Neuberger Berman International Sel Tr NILTX 22.00 1.25 0.10 Global Equity Large Cap
Neuberger Berman Global Equity A NGQAX 41.00 1.51 0.25 5.75 Global Equity
Neuberger Berman Emerg Mkts Eq A NEMAX 43.00 1.50 0.25 5.75 Emerging Markets Equity
Neuberger Berman Guardian Inv NGUAX 99.00 0.87 US Equity Large Cap Growth
Neuberger Berman Socially Rspns Inv NBSRX 28.00 0.85 US Equity Large Cap Growth
Neuberger Berman Focus Inv NBSSX 89.00 0.91 US Equity Large Cap Blend
Neuberger Berman Muni Interm Bd Inv NMUIX 22.00 0.65 US Municipal Fixed Income
Neuberger Berman Equity Income Inst NBHIX 49.00 0.74 US Equity Large Cap Value
Neuberger Berman Large Cap Value Inv NPRTX 153.00 0.87 US Equity Large Cap Value
Neuberger Berman Value Instl NLRLX 166.00 0.76 US Equity Large Cap Value
Neuberger Berman Genesis Inv NBGNX 16.00 1.01 US Equity Small Cap
Neuberger Berman Small Cap Growth Inv NBMIX 336.00 1.31 US Equity Small Cap
Neuberger Berman Intrinsic Value Instl NINLX 17.00 1.00 US Equity Small Cap
Neuberger Berman Mid Cap Growth Inv NMANX 50.00 0.93 US Equity Mid Cap
Neuberger Berman M/C Intrinsic Val Inv NBRVX 50.00 1.25 US Equity Mid Cap
Neuberger Berman Long Short A NLSAX 91.00 1.70 0.25 5.75 Long/Short Equity
Neuberger Berman Real Estate Tr NBRFX 33.00 1.39 0.10 Real Estate Sector Equity
Neuberger Berman Floating Rate Inc A NFIAX 44.00 1.07 0.25 4.25 US Fixed Income
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On average, an investor who utilized an equity strategy from Neuberger Berman experienced a 1.17% expense ratio, a 0.21% 12b-1 fee, and a 5.75% max front-end load for equity funds with a load. Similarly, an investor who utilized a bond strategy from Neuberger Berman experienced a 0.81% expense ratio, a 0.25% 12b-1 fee, and a 4.25% max front-end load for bond funds with a load. This can have a substantial impact on an investor's overall accumulated wealth if it is not backed by superior performance. The average turnover ratios for equity and bond strategies for Neuberger Berman were 95.52% and 119.57%, respectively. This implies an average holding period of about 10 months to 12 months, on average. It is safe to say that Neuberger Berman makes investment decisions based on short-term outlooks, which means they trade quite often. Again, this is a cost that is not itemized to the investor, but is definitely embedded in the overall performance. In contrast, most index funds have very long holding periods--decades, in fact, thus deafening themselves to the random noise that accompanies short-term market movements, and focusing instead on the long term.

Excess Return Against Commercial Benchmark

The next question we address is whether investors can expect superior performance in exchange for the higher costs associated with Neuberger Berman's "expertise." We compare each of the 28 strategies against their current Morningstar assigned benchmark to see just how well each has delivered on their perceived value proposition. We have included alpha charts for each strategy at the bottom of this article. Here is what we found:

  • 57% (16 funds) have underperformed their respective benchmarks since inception, having delivered a NEGATIVE alpha
  • 43% (12 funds) have outperformed their respective benchmarks since inception, having delivered a POSTIVE alpha
  • 0% (0 funds) have outperformed their respective benchmarks consistently enough since inception to provide 95% confidence that such outperformance will persist as opposed to being based on random outcomes

It is important to mention that these performance figures do NOT include the front-end load. If an investor paid the front-end load, their return is worse than the results we show here. Not all investors pay the front-end load depending on who sold the fund to the investor, if the fund is in a qualified retirement plan, etc.

In general, we conclude that Neuberger Berman has no expectation of producing above-average returns for their investors. The vast majority (57%) of their funds didn't beat the average since their inception. The inclusion of statistical significance is key to this exercise as it indicates which outcome is the most likely vs. random-chance outcomes.

Fama/French 3 Factor Regression Adjusted Performance

Now some readers may believe that we are not properly analyzing performance since we do not take into account risk (Beta). We understand your concern. Because Morningstar is limited in terms of trying to fit the best commercial benchmark with each fund in existence, there is of course going to be some error in terms of matching up proper characteristics such as average market capitalization or average price-to-earnings ratio. A better way of controlling for these possible discrepancies is to run multiple regressions where we account for the known dimensions (Betas) of expected return in the US (market, size, relative price, etc.). For example, if we were to look at all of the US based strategies from Neuberger Berman who have been around for at least the last 10 years, we could run multiple regressions to see what their alpha looks like once we control for Beta. The chart below displays the average alpha and standard deviation of that alpha for the last 10 years ending 12/31/2015.

Click to enlarge

As you can see, not a single fund produced an alpha that was statistically significant at the 95% confidence level (green shaded area). This is what we would expect in a well functioning capital market.

Conclusion

While Neuberger Berman's lawyers may be technically correct, they are really missing the essence of the lawsuit. Would the plan participants of their employer sponsored 401(k) been better off investing in a passively managed alternative to their active strategies? The answer is a resounding yes! Not only are Neuberger Berman's fees expensive, they have been unable to prove that their higher fees are justified by superior performance.

At its very core, being a fiduciary is doing solely what is in their employees' best interest at all times. It's very hard to make the case that this is what is going on at Neuberger Berman.

Disclosure: I/we have no positions in any stocks mentioned, and no plans to initiate any positions within the next 72 hours.

I wrote this article myself, and it expresses my own opinions. I am not receiving compensation for it. I have no business relationship with any company whose stock is mentioned in this article.