Xerox wins lawsuit alleging 'kickback' scheme with Financial Engines

Xerox HR Solutions has won a lawsuit alleging it engaged in a pay-to-play scheme with the robo-adviser Financial Engines, marking the third defeat this year for plaintiffs bringing such charges against 401(k) record keepers. Xerox's defined contribution plan record-keeping unit now operates under Conduent Inc., following a separation from Xerox Corp. in 2017. Conduent is one of the top 10 largest DC-plan record keepers by assets. Michigan district court judge Robert H. Cleland dismissed the lawsuit, Chendes et al v. Xerox HR Solutions, but granted plaintiffs leave to replead claims in three of the four counts made in the lawsuit by Nov. 2. Financial Engines isn't a defendant in the lawsuit. Attorneys representing plaintiffs didn't respond to requests for comment on whether they plan to replead the counts, which included breach of fiduciary duty under the Employee Retirement Income Security Act of 1974. The lawsuit hinged on a supposed "kickback" scheme, whereby Financial Engines, a managed-account provider made available via Xerox's record-keeping platform, paid Xerox a "significant percentage of the fees" it collected from participants in defined contribution plans offered by Ford Motor Co., plaintiffs claimed. They said Financial Engines paid Xerox more than 30% of the fees it received from the Ford plans, claiming the percentage is "plainly unreasonable" given Xerox doesn't provide "substantial services" to Financial Engines or participants for that fee, and "wrongfully inflates" the service price for participants, according to the dismissal document published Oct. 19. Fidelity Investments and Voya Financial Inc. recently beat back similar allegations. Another lawsuit against Aon Hewitt (the record-keeping unit of which is now Alight Solutions) is outstanding. The Xerox lawsuit was filed in November 2016.