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Vanguard settles target-date fund investor case

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Vanguard agreed to pay $40 million to settle a potential class-action case over steep capital-gains taxes that hit thousands of investors in the firm’s target-date funds.

In the Nov. 6 preliminary settlement awaiting approval in Philadelphia federal court, the asset management giant did not admit any guilt or wrongdoing. However, the payout would add on to another $6.25 million in fines and restitution against Vanguard in 2022 in the settlement of a case filed by Massachusetts regulators on behalf of investors who absorbed capital gains — and the accompanying tax burden — when the firm opened the lower-cost institutional share classes of the funds to midsize retirement plans it had previously shut out from them in 2020.

Those clients rushed into the cheaper shares in a move described by The Wall Street Journal as an “elephant stampede” that caused the target-date funds to sell 15% of the products’ holdings in transactions saddling taxable-account investors with a capital-gains distribution that was 40 times any previous level, according to the March 2022 lawsuit. Less than a year after reducing the minimum-asset requirement for institutional shares to $5 million from $100 million, the firm merged them together with the retail versions of the funds. That adjustment caused no tax impact, leading experts to question why Vanguard didn’t simply do that in the first place.

“You got these huge capital gains that had to be distributed, and that was really the big problem,” said Daniel Sotiroff, a manager research senior analyst of passive strategies for Morningstar Research Services. “Vanguard actually did kind of mess this one up.”

Representatives for Vanguard didn’t respond to requests for comment on the case or the settlement.

READ MORE: How Vanguard’s tax-bomb target-date funds slammed wealthy investors 

It and the plaintiffs had indicated in September filings that they reached agreement in private mediation that month. The investors accused Vanguard and its top executives of breaching their fiduciary duty, aiding and abetting that breach, gross negligence, breaking the covenant of good faith and fair dealing, unjust enrichment and violations of several state laws. In the course of discovery, Vanguard deposed 10 of the plaintiffs and produced 250,000 documents.

The company agreed to the settlement “solely to eliminate the burden and expense of further

litigation,” and nothing in it is “an admission or finding of any fault, liability, wrongdoing or damage whatsoever or any infirmity in the defenses that [the] defendants have asserted, or could have asserted,” according to court filings.

“Defendants have denied, and continue to deny, that they have committed any act or omission giving rise to any liability or violation of law,” the “stipulation of settlement” document stated. “Defendants have asserted, and continue to assert, that the conduct was at all times proper and in compliance with all applicable provisions of law, and they believe that the evidence developed to date supports their positions that they acted properly at all times and that the action is without merit.”

In the agreement ordering Vanguard to pay $40 million to target-date investors who paid the tens or even hundreds of thousands of dollars in taxes three years ago, the plaintiffs agreed to take roughly 15% of the “best-case scenario” payment of $259.5 million in damages, according to their filing for approval of the settlement. The settlement agreement limited attorney fees to no more than one-third of the award and capped litigation expenses at $985,000. If the settlement gets preliminary approval, the plaintiffs would then reach out to potential class members for their reaction before seeking the final green light on the agreement.

The cash settlement “provides an immediate recovery to impacted Vanguard [target-date fund] investors and avoids the considerable risks of continued litigation in this complex class action,” the filing stated. “Plaintiffs and class counsel believe that the case has merit, but they recognize the significant risk and expense that would be necessary to prosecute Plaintiffs’ claims successfully through class certification, continued fact and expert discovery, summary judgment, trial and subsequent appeals, as well as the inherent difficulties and delays complex class action litigation like this entails. As previewed in the parties’ class certification briefing, which focused almost exclusively on damages model issues, proving damages would be risky, complicated, and uncertain, involving conflicting expert testimony.”

READ MORE: Vanguard to pay some — not all — of tax bills created for TDF investors

Besides the substantial payout, the case helped remind financial advisors and their clients of the potential risks involved with holding mutual funds in taxable accounts, Sotiroff said. ETFs or separately-managed accounts could help avoid the tax surprises in non-retirement holdings, even though target-date funds may not be as readily available in that form.

“If you’re going to hold a mutual fund, you have to expect that you’re probably going to get some capital gains distributions from it,” Sotiroff said. “You’re always potentially on the hook for a capital gains distribution.”

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Board members need more audit and finance skills

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Audit and finance skills are heavily in demand for corporate board members, according to a recent survey.

BDO’s 2024 Board Survey polled 249 corporate directors of public company boards in July and August and found that 27% of respondents said the top skill set for directors in 2025 is audit/finance.

“It was tied actually with cybersecurity as a skill set, and then just behind technology implementation and industry specialization, as well as corporate strategy,” said Amy Rojik, national managing principal for corporate governance of BDO USA. “I think this reflects several things that are important to public companies, in particular the heightened focus of stakeholders, especially regulators and investors, on the need for high-quality and reliable financial information and disclosures to aid in investment decisions. We all know that regulators are heavily pushing for transparency and disclosures across the board, and in particular with respect to financial accounting and reporting disclosures, along with important oversight responsibilities, particularly in increasing risk areas like cybersecurity where breaches can really have a material impact on a company’s financial condition.”

The New York offices of Top 10 Firm BDO USA
BDO New York offices

Photo: Richard Falco

The survey asked the board members what they believe are the greatest near-team opportunities for generative AI, and 11% cited finance and accounting.

“Anecdotally, the top three board education continuing education topics that we get asked to provide to the board are generative AI, cybersecurity and enterprise risk management,” said Rojik. “Those by far are the most requested things that, especially with the audit committee, we’re seeing as a topic of conversation that they want to dive deeper into. I find that very encouraging because it’s across the board.”

Some 17% of the survey respondents indicated that advancing the use of emerging technology is a top strategic priority, while lagging implementation of emerging technology (27%) is a top-cited risk. At the same time, a slight majority of directors (51%) indicated they plan to increase investment in emerging technology, while 41% intend to increase investment in cybersecurity, data privacy and governance over the next year. 

Generative AI has become a governance focus, with directors pursuing use cases and working to mitigate a wide array of risks. Approximately one third of directors (31%) selected customer experience (16%) or product/service development (15%) as the greatest opportunity for generative AI. 

Rojik pointed to a recent spotlight report from the Public Company Accounting Oversight Board on how auditing firms and financial statement preparers are using AI.

“It’s probably more at the forefront, where we’re probably on the audit side preparing more administrative documents or initial drafts of memos and presentations and researching internal accounting and auditing guidance,” she said. “Preparers may be doing something similar, maybe summarizing accounting standards and interpretations, and benchmarking company information. And then some are even using generative AI to assist in the performance of less complex and repetitive processes, such as preparing account recs or identifying reconciling items. I think the potential investments that companies are looking forward to are summarizing accounting policy and legal documents, evaluating completeness of audit documentation against relevant documentation requirements, performing risk assessment procedures and scoping the audit.”

But data privacy and security remain important factors, she added. Firms need to be careful about client information being loaded into a generative AI-enabled tool, who is allowed to use those types of tools on the audit, what level of staff, and where the supervision is in those models. 

“There’s still, fortunately for all of us, a very high human element of supervision and review to make sure this is all making sense and that we understand what’s going into these models that we’re exploring and what’s coming out has integrity,” said Rojik. “We have a long way to go on both sides of that, from an audit perspective and from a financial reporting perspective. I would say with confidence every audit firm is looking at how to do that, but they’re also looking at it from a lens of how the regulators are going to monitor, enforce and regulate that. There’s more to come in that space certainly, but that’s a huge area to keep an eye on for boards.”

The survey also included data on committee allocation for audit, and found 57% of the public company board respondents have an audit committee and serve on it, while 43% have an audit committee and do not serve on it, and 0% do not have an audit committee. 

The audit committee and others are confronting risks from technology and the economy.

“Organizations are really considering where they should be allocating risks, especially emerging risks, and so we’re taking a look at their traditional board structures in terms of the committee allocations,” said Rojik. “Is the audit committee the right committee to put all these emerging risks in? Should there be special committees of the board, or should there be separate committees? Several of our clients have recently instituted separate technology committees, or technology innovation committees. Some, especially financial institutions of a certain size, are required to have risk committees. The most important thing boards can be doing, though, is looking at how they’re putting together that allocation through their charters and other documents that hold them accountable, and then looking at how regulators are viewing the required disclosures.”

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LGBTQ financial planning for second Trump administration

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Financial planners who work with LGBTQ clients are helping them prepare for a potential rollback of civil rights under President-elect Donald Trump’s second administration.

Expressing empathy for the clients’ fears about future Supreme Court decisions, congressional bills or executive actions and state-level laws has emerged as a key aspect of guiding households through careful considerations and avoiding rash choices — along with providing technical guidance on the ramifications to estate planning and residential moves, financial advisors told Financial Planning. Just as with clients of any background or political ideology, planners are trying to assist clients in dealing with events out of their control that are affecting their families’ financial future.

“Being a great listener” and understanding that “people are going to have unease about investments specifically” when they believe that their rights are under attack can go a long way, said Lindsey Young, founder of Baltimore-based registered investment advisory firm Quiet Wealth. Shortly after Trump’s victory in this month’s elections, she warned in a LinkedIn post that many clients’ marriages may no longer be secure in some states and that it was important for LGBTQ couples to “have estate plans and healthcare directives in place that incorporate the possibility that their marriages are no longer recognized.” But that should come after giving the clients the space to share their valid concerns, she said in an interview.

“It’s just recognizing that it could be a hard time,” Young said. “It’s just saying, ‘I’m here to help you.’ Saying that is really important.”

READ MORE: LGBTQ estates — when planning is a civil right

Marriage rights are rightfully getting “a lot of attention when it comes to the political battle for human rights, and rightfully so,” according to Leighann Miko, founder of Los Angeles- and Portland, Oregon-based RIA firm Equalis Financial. However, transgender clients and their loved ones are also wondering about “the medical care they need” and a range of issues including “access to hormones, surgery, legal changes to a birth certificate or gender markers on a driver’s license,” she said in an email. 

“Often as planners, we default to our technical skills to plan the risk away,” Miko said. “While helpful and usually the reason our clients seek us out, it’s equally important to provide a safe space for our clients to express their fears and concerns, especially as it relates to their financial lives. As a marginalized community that has had to fight tooth and nail for basic human rights, LGBTQ clients are exhausted. Be patient, be willing to see things through a different lens, and listen with empathy.”

Even before the election, LGBTQ advocates had been tracking a surge in state bills and laws involving IDs, drag shows, health care and schools. 

For 2.7 million LGBTQ people over the age of 50, the rankings for the best states to retire in vary greatly from a list that doesn’t take their civil liberties into account, according to a report last month by the Movement Advancement Project, a nonprofit think tank. MAP’s top 10 of Oregon, Connecticut, Maine, Vermont, California, Hawaii, Delaware, Colorado, Rhode Island and New Jersey contrasted with a Bankrate list that rated Delaware, West Virginia, Georgia, South Carolina, Missouri, Mississippi, Pennsylvania, Florida, Iowa and Wyoming at the top. Delaware was the only state that made both top 10 lists.

“Including even a minimal consideration of a state’s treatment of LGBTQ people would result in a different ranking of states altogether,” MAP wrote in the report. “MAP’s research team decided to compare Bankrate’s analysis to our publicly available data on state policy to illustrate how state rankings can change dramatically when you incorporate laws and policies that shape the lives and experiences of LGBTQ people. Our findings show strikingly different results and highlight a very different set of considerations for LGBTQ adults deciding where to spend their golden years.”

READ MORE: LGBTQ retirees face specific challenges. Here’s how advisors can help

As inviting as a new state may seem when considering policies, clients will need to weigh factors such as whether their residence may affect their pension and a possible higher cost of living if they depart from a southern state to a coastal state like California or New York, Young noted. Since fear can lead to common behavioral biases or mistakes, planners must “show them the facts in terms of the implications of a potential move” and “be realistic with them” as the clients think through their long-term goals, she said.

“The big thing is to say, ‘Let’s step back and run the numbers.’ I think there’s a temptation among many people to say, ‘I’m going to move, I’m going to get out and we’ll figure it out when we get there,'” Young said. “If they were to move, it actually makes them feel much more confident with that move, as opposed to just panicking.”

In terms of the possible challenges to same-sex marriage, advisors and their clients could seek second-parent adoptions, update the beneficiaries listed in a will or a trust or purchase life insurance to cover estate taxes if one of the spouses dies, Miko noted. Those possible steps come on top of other necessary ones, if there is a Supreme Court decision overturning same-sex marriage rights or if individual states pass their own restrictions, she said.

“Many of the pre-2015 safeguards will have to be implemented once again, which still don’t quite level the playing field compared to legally recognized marriage rights,” Miko said. “For example, a non-married partner does not automatically inherit assets upon the death of a partner, and, in community property states, the surviving partner would not receive the tax benefit of a full step-up in cost basis on the inherited asset, such as a home.”

READ MORE: Are Christian donor advised-funds pushing anti-LGBTQ politics?

She and Young pointed out how marriage affects the policy of unlimited gifts between spouses without estate taxes and the requirement for clients to get current and valid power of attorney and advanced health care directive documents on file. 

“The good thing is that there are many LGBTQ estate attorneys who have been doing this for decades,” Young said. “That provides the best protection against potential changes in the law.”

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ACFE marks International Fraud Awareness Week

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The Association of Certified Fraud Examiners is marking International Fraud Awareness Week this week, with more than 1,400 organizations across the world educating their communities about the threat of fraud and scams and how to stay safe.

The ACFE launched the weeklong event in 2000. It began as National Fraud Awareness Week and became international seven years later. Next year will mark the 25th anniversary.

Last week, the ACFE hosted the ACFE Government Anti-Fraud Summit in Washington, D.C., bringing together experts from inside and outside government to discuss ways to combat fraud.

“In terms of online activity, we always tell people when you put information out into the world, you need to be aware of the fact that you’re leaving digital breadcrumbs that people are going to be able to pull together if, in fact, you really are a worthy target,” said Morgan Adamski, executive director of United States Cyber Command during a keynote session. “Something to be very cognizant of, and limiting their friend zone in terms of who has access to that information.”

Morgan Adamski, executive director of U.S. Cyber Command, speaking at the ACFE Government AQnti-Fraud Summit

Morgan Adamski, executive director of U.S. Cyber Command, speaking at the ACFE Government AQnti-Fraud Summit

She warned of activity by a Chinese government-backed group of hackers. “They are prepositioning in U.S. critical infrastructure so that they can potentially disrupt, degrade and deny those services at a time that they’re choosing to create societal panic,” said Adamski. 

The hackers have been exploiting vulnerabilities in people’s home routers as a way to access critical infrastructure and advised attendees to update the software in their routers.

“The key takeaway is that a lot of the cybersecurity we’re talking about is a little basic, but when we have technology in all aspects of our lives, it can be a little daunting to think about security and the role that we play in that, and how we have to kind of really stay attuned to it,” said Adamski. “Just remember malicious cyber actors are always looking for targets of opportunity. They are hunter gatherers. One piece of revealed information very often leads to a breadcrumb trail of other information, and when we put that together, that can result in compromise.”

The federal government often needs to partner with the private sector, noted Joseph Ford, owner and principal of Newman and Ford Associates. He was formerly executive vice president and chief security officer at Bank of the West and spent 30 years with the Federal Bureau of Investigation, including as the FBI’s CFO and COO.

“Having sat on both sides, with government and private sector financial services, information sharing and building these collaborative relationships really becomes very, very important, but you have to have something to share,” said Ford. “Being able to establish a culture in the private sector that allows you to have that outreach, having working groups of government entities. Think of yourselves as each having a role to play,, whether you’re in the audit function, the law enforcement function or the intelligence function. You all have a role to play in collaborating with the private sector. Having those relationships is important, but how do you translate those relationships into something actionable? I think we all struggle with that.”

He’s seen working groups create information-sharing processes through joint training efforts and joint exercises such as tabletop exercises to help them prepare for a crisis like a cybersecurity or fraud event. 

“I actually do a lot of work with cyber tabletop exercises,” said Ford. “Inevitably, in every exercise, I add a fraud element because most bad guys that are committing cyber attacks, whether it’s a cyberattack on a government agency’s payment system, or a cyberattack to get information, there is usually a fraud element involved.”

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