Typically, academics do research and then write about their findings and conclusions. However, as has been reported elsewhere, Professor Ian Ayers, the William K. Townsend Professor at Yale Law School, decided to take his findings and conclusions a step further. He sent a letter to some 6,000 401(k) plan sponsors essentially accusing them of potentially violating ERISA fiduciary duties. He then went even further and threatened to publicize their identities and advised them that he would assign each of the 6,000 of them with their own hashtag on Twitter when he publicized his study next year in periodicals including the New York Times and the Wall Street Journal. His threats have been garnering substantial attention in the popular press. Needless to say, Professor Ayers has created quite an uproar in the 401(k) plan advisor and consultant communities. You can read a redacted copy of the letter here.
The Study (and its Flaws)
Professor Ayers indicates in his letter, and in the draft study that he and Professor Quinn Curtis of the University of Virginia School of Law co-authored, that he used 2009 data from Forms 5500 and from 2009 data compiled by Brightscope, Inc. Brightscope has advised ASPPA that it had nothing to do with the study and Yale has confirmed that Brightscope’s 2009 information was used with no direct participation by Brightscope.
The draft of the study posted online is already coming under fire from other sources for a