COLLECTED WISDOM™ on Fiduciary Related News and Intelligence
These are general fiduciary news items. Other topical areas you may find of interest that are not fully covered here include ERISA 404(c) Compliance and Fiduciary Duty, 401k Investment Committees, Fiduciary Responsibility and Liability Issues, and DOL's Final Fiduciary Rule and Best Interests Contract Requirement.
Abstract: The DOL intends to treat failure to locate missing plan participants as a breach of fiduciary duty under ERISA. Non-compliant plans may face significant penalties. This is somewhat of a reversal of a former DOL attitude that plans simply wait for participants to locate them.
Source: Hallbenefitslaw.com, February 2019
Abstract: CAPTRUST's Drew McCorkle provides an update on topics such as fiduciary process controls, staff creating fiduciary liability, pension lawsuits on benefit calculations, and benefit interference claims.
Source: Captrust.com, February 2019
Abstract: This article discusses a novel approach for compliance with the fiduciary standard for the selection of investments for 401k plans. All the more interesting, the approach was part of an opinion of the U.S. First Circuit Court of Appeals.
Source: 401kspecialistmag.com, February 2019
Abstract: In recent years, there has been an increase in considering environmental, social, and governance criteria when it comes to investing. However, not all investors agree that ESG factors should be considered when identifying prudent investments. The Department of Labor recently put out a bulletin that clarified how ESG criteria can be used by plan fiduciaries in making investments.
Source: Bsllp.com, February 2019
Abstract: One of the most important things a company can do to properly equip its retirement plan committee members is to provide comprehensive fiduciary training. It's an important step to minimize fiduciary risk through education and governance. Furthermore, the DOL views fiduciary training as a critical element of prudent oversight and is increasingly looking for evidence that fiduciary training has been provided during plan audits. Unfortunately, formal fiduciary training is still not very common within the industry.
Source: Greenspringadvisors.com, January 2019
Abstract: As someone responsible for 401k compliance and administration at your company -- whether you're signing Form 5500 each year or just handling part of the process -- there are some very big legal responsibilities you need to be aware of. This guide walks you through everything you need to know about being a 401k fiduciary: what it means, what your legal responsibilities are, and steps you can take can to offload some of that liability and make your plan's compliance as simple and easy as possible.
Source: Forusall.com, January 2019
Abstract: On January 18, the Nevada Securities Division released its long-awaited proposed draft regulation. Under the proposed regulation, a broker-dealer and sales representative are presumed to owe a fiduciary duty to the client.
Source: Fiduciarygovernanceblog.com, January 2019
Abstract: A well-organized and effective retirement plan committee is the cornerstone of successful fiduciary decision-making and organizational risk management for plans of any size. However, great committees do not happen by accident, they are the product of a "best practices" approach to design and implementation. Listed here are eight simple steps any company can implement to make its committee more effective.
Source: Greenspringadvisors.com, January 2019
Abstract: This is a summary of the deposit deadlines applicable to all 401k plan contributions, including how to correct late contributions. If you're a 401k fiduciary, you can use this information to understand your plan's contribution deadlines and what you need to do in case you miss one.
Source: Employeefiduciary.com, January 2019
Abstract: A new world of fiduciary is upon us. What does this mean for 401k plan sponsors and the financial professionals that serve them? How should this new fiduciary atmosphere change their focus? In many ways, 401k plan sponsors might be surprised to discover the path has never been clearer In fact, the journey can be described in these five easy steps.
Source: Fiduciarynews.com, January 2019
Abstract: The problem with most resolutions is that people quickly give up on them. For plan sponsors, they should have New Year's resolutions to improve their plan because they are fiduciaries by being responsible for the retirement plan assets over their employees. This article is about New Year's resolutions that plan sponsors should make and keep alleviating some of the potential liability they face as plan fiduciaries.
Source: Jdsupra.com, December 2018
Abstract: A series of recent settlements in ERISA lawsuits illustrates to defined contribution sponsors why an ounce of prevention is worth a pound of cure. These settlements cover financial institutions that have filled their 401k plans with proprietary investments, provoking allegations of self-dealing that violate their fiduciary responsibilities under ERISA.
Source: Pionline.com, December 2018
Abstract: 401k and 403b plan litigation is not going away. If you are a plan fiduciary looking to avoid (or win) future lawsuits over fees and investments, there are lessons to be learned from recent decisions and settlements about the best ways to protect yourself in 2019. Here are some important takeaways from recent litigation activity.
Source: Cohenbuckmann.com, December 2018
Abstract: 401k lawsuits are on the rise. However, the legal responsibilities associated with 401k lawsuits are not always crystal clear. Plan fiduciaries who manage and administer 401k and 403b plans struggle with knowing how to perform. There are many grey areas, and so questions persist about fiduciary duties and 401k lawsuits. A 2018 paper from the Center for Retirement Research at Boston College explores the reasons behind these lawsuits, as well as their implications for plan sponsors and the retirement industry.
Source: 401ktv.com, December 2018
Abstract: Employers have a fiduciary responsibility to ensure the fees paid by their 401k plan participants are "reasonable" and not subject to unnecessarily excessive fees. To do that job, employers must benchmark their 401k fees - basically, compare them to industry averages and/or fee charged by competing 401k providers. Sounds straightforward, but this information is hard to find and often harder to compare on an apples-to apples basis.
Source: Employeefiduciary.com, November 2018
DOL Guidance Addresses Fiduciary Status and Fees Under Program Facilitating Portability of Automatic Rollovers
Abstract: The program provider asked the DOL for two forms of guidance: first, an advisory opinion clarifying the fiduciary status of the parties involved; and second, a prohibited transaction exemption that would allow the provider to receive a fee for transferring a default IRA's assets into the plan of the IRA owner's current employer without the owner's affirmative consent.
Source: Thomsonreuters.com, November 2018
Abstract: While insurers have not reacted in a unified way, the claim environment has become much more active and severe during the past 24- 36 months, highlighted by well-publicized excessive fee litigation under ERISA. This 10-page fiduciary liability claim trends report discusses, among other items, the many excessive fee cases brought against universities, why proprietary funds are more challenging risks, and recent results from a Boston College study examining the causes and consequences of 401k lawsuits.
Source: Lockton.com, November 2018
Abstract: Pentegra released this report -- based on the results of a survey of retirement plan advisors -- to determine what their attitudes are toward ERISA 3(16) fiduciary outsourcing.
Source: Issuu.com, November 2018
Abstract: There is not a legal requirement that committee members receive fiduciary training. Instead, it's a best practice and good risk management. But, what should the fiduciary education cover? Based on an analysis of court decisions on fiduciary responsibility, Fred Reish worries that fiduciaries may not be adequately educated about their basic responsibilities and particularly their administrative oversight duties.
Source: 401kspecialistmag.com, November 2018
Abstract: As a plan sponsor, you are required to understand all of the fees that are associated your organization's retirement plan benefit program. This is a challenge because plan fee structures are often opaque, complicated, and downright misleading. The most effective way to meet your fiduciary requirement is a Request for Proposals process, typically run every three-to-five years. Why? The 401k and 403b markets are extremely competitive. They are constantly evolving and changing.
Source: Fiduciaryplangovernance.com, November 2018
Abstract: 401k Plan Sponsors may consider retaining outside help to assist the organization in meeting various fiduciary responsibilities. To prepare for any meaningful conversation of fiduciary responsibilities, there are a few terms one should be familiar with and have a basic working knowledge of - §3(16), §3(21) and §3(38).
Source: 5500audit.com, November 2018
Abstract: Fidelity recently debuted two "no fee" mutual funds, a domestic and an international index fund. This concept raises significant fiduciary questions. Beyond the fact they have no investment performance history, the very concept of the business model has no history. No mutual fund has ever been offered that has been fully subsidized by the management company.
Source: Fiduciarynews.com, October 2018
Abstract: Unfazed that the Department of Labor fiduciary rule has been rendered moribund, the Garden State is forging ahead with its own. The New Jersey Bureau of Securities is initiating work on the standards, which would impose a fiduciary duty on all New Jersey investment professionals and require them to place their clients' interests above their own when recommending investments.
Source: Asppa.org, September 2018
Abstract: Determining whether a breach of fiduciary duty has occurred is a science. It is an organized way of gathering and analyzing evidence about the behaviors and methodologies of those who make choices.
Source: 401khelpcenter.com, September 2018
Abstract: This 12-minute podcast discusses participant directed defined contribution plans and the lawsuits against the fiduciaries and service providers which are responsible for administering them. Also examines the best practices that can achieve favorable results for plan participants and the practices that can avert litigation or enable plan fiduciaries to effectively defend themselves if there is litigation.
Source: Erisapracticecenter.com, September 2018
Abstract: Since 2016, participants have filed 19 lawsuits against universities over the fees charged to the universities' 403b plans. In the first of these cases to reach trial, New York University secured a complete victory when the court found that NYU did not breach its ERISA fiduciary duty of prudence. The court's decision provides some important takeaways for plan sponsors and the retirement committees that act as plan fiduciaries.
Source: Drinkerbiddle.com, September 2018
Abstract: District Judge Katherine B. Forrest's opinion in Sacerdote highlights the various fiduciary governance practices the NYU fiduciaries followed in making the decisions at issue in the case. This article summarizes the fiduciary practices and explains how they helped the NYU fiduciaries prevail at the trial level.
Source: Barclaydamon.com, September 2018
Abstract: In holding that the former employee failed to state a claim, the court in Meiners v. Wells Fargo & Co. reasoned that the plaintiff failed to plead facts showing the Wells Fargo investment funds were an imprudent choice. Specifically, the court found that the plaintiff's allegations that an allegedly comparable fund performed better was not sufficient, especially given the other fund's differing investment strategy.
Source: Employeebenefitsblog.com, September 2018
Abstract: Given the prevalence of ERISA fee litigation, 401k plan sponsors are very concerned about identifying and implementing best fee practices to insulate themselves from liability against such claims. Over 50 so-called "fee cases" have been filed to date, with the majority pursued as class actions. Like most fiduciary benefit claims, however, the liability risk can be substantially mitigated through preventive practices.
Source: Bna.com, September 2018
Abstract: Due to ERISA's increased standard of care, the now defunct DOL rule and other potential regulatory replacements, plan sponsors are faced with the heightened importance to understand the fiduciary roles and responsibilities for their retirement plan. This article outlines the ways of becoming a fiduciary, the differences between ERISA 3(21) and 3(38), and which is best depending on your plan and plan committee.
Source: Planpilot.com, September 2018
Abstract: Due to the large amount of work in starting and maintaining their retirement plan, sponsors often overlook certain aspects that may expose them to potential liability. Additionally, some plan sponsors are unaware of the ongoing fiduciary duties which can result in misconceptions about the plan and its participants. These misconceptions can be costly, and sponsors may find themselves in trouble with the IRS or the Department of Labor.
Source: Planpilot.com, August 2018
Abstract: The article's author believes that most plan sponsors fail to comply with section 404(c)'s "sufficient information" and "control" requirements. Plan sponsors must have that information in order to (1) comply with their fiduciary duty to conduct an independent investigation and evaluation of a plan's investment options, and (2) to ensure that the plan options provide plan participant with the opportunity to effectively diversify their retirement account and minimize the risk of large losses.
Source: Iainsight.wordpress.com, August 2018
Abstract: The United States District Court for the District of Minnesota has, for a second time, dismissed claims by participants in the Wells Fargo 401k plan. This second decision focused on the issue of the fiduciary duty of loyalty, the court's discussion of which is thorough and interesting both in its specific application to stock drop cases and to fiduciary litigation more generally. In this article we discuss the court's opinion in detail.
Source: Octoberthree.com, August 2018
Abstract: The Fifth Circuit Court of Appeals issued its mandate to vacate the Department of Labor fiduciary rule in June, but guidance issued by the DOL the month prior allows at least part of the rule to continue to apply. This anomaly has some profound ramifications for retirement advisers dispensing rollover advice.
Source: Investmentnews.com (registration may be required), August 2018
Abstract: One of the trickiest areas of compliance for advisers and their supervising firms is related to principal transactions. David Kaleda, a principal in the Groom's Fiduciary & Plan Governance practice, provides an overview of compliance obligations for advisers in connection with principal transactions.
Source: Groom.com, August 2018
Abstract: Comments on the SEC's proposed best interest standards express concern that the standards fail to impose a uniform fiduciary standard or define key terms, most notably, what is a "best interest" standard.
Source: Planadviser.com, August 2018
Abstract: There are legal rules, then there are common sense rules. This article is about the common sense rules. Common sense refers to those standards and practices that helps one excel in the front lines of the real world. Here are seven very practical rules every professional fiduciary must follow.
Source: Fiduciarynews.com, August 2018
Abstract: In the last two years, over 100 lawsuits were filed against fiduciaries of 401k plans, primarily involving selection of investment options and other plan service providers. Similar lawsuits are targeting plans sponsored by private sector universities and tax-exempt organizations. Defined contribution plan fiduciaries should review the types of claims described here and schedule a review of your processes for selection of investment options and other service providers, to limit liability exposure.
Source: Hansonbridgett.com, July 2018
Abstract: hey can take away the DOL's Fiduciary Rule, but they can't remove the after effects. Remember, the official name wasn't "The Fiduciary Rule." When the DOL unveiled the final version, it was rechristened "The Conflict-of-Interest Rule." The focus wasn't on some legal definition of fiduciary. Instead, the emphasis was on the dangers inherent in advice containing conflicts-of-interest. Here are some examples of self-dealing transactions that, if executed, will likely result in a fiduciary breach.
Source: Fiduciarynews.com, July 2018
Abstract: Using non-fiduciary plan providers for services or investing may cause a plan committee to assume more retirement plan risk than the plan sponsor wants to accept. Retirement plan sponsors have a large responsibility to plan participants and the sponsoring organization. We frequently hear of the responsibility that extends to plan participants and their beneficiaries, but we rarely hear of some of the additional responsibilities. Most plan sponsors have a full understanding of the role of the plan vendors. What is frequently misunderstood is in what capacity are our service providers performing their functions?
Source: 401ktv.com, July 2018
Abstract: Many retirement plan participants and plan sponsors are no longer content with investments that simply bring them good returns. They also want their investments to do some good in the world. The key question for plan fiduciaries is whether they can pursue these types of investments while also meeting the requirement to act in the best interest of plan participants.
Source: Bna.com, July 2018
Abstract: The death of the Fiduciary Rule does not mean that plan sponsors and committee members cannot insist on getting nonconflicted fiduciary advice. It just makes their job harder. It is worth the extra effort, because getting investment advice from an ERISA fiduciary makes a big difference.
Source: Penchecks.com, July 2018
Abstract: For many plan sponsors, their real job has nothing to do with running the company retirement plan. Yet, being named a plan sponsor may carry greater personal risk than their real job. This article identifies fiduciary questions every 401k plan sponsor must ask, what the best answers to those questions are, and why they are important.
Source: Fiduciarynews.com, July 2018
Abstract: Here's a new risk for plan sponsors to be aware of, you could be sued based on the qualified default investment alternative (QDIA) you choose for your retirement plan. For example, participants could claim you failed to fulfill your fiduciary duty if the plan's qualified default investment option -- typically a target-date fund -- doesn't deliver the expected outcomes.
Source: 401ktv.com, June 2018
Abstract: When thinking about fiduciary support services and outsourcing, really the important considerations should be about process and time management, more than fiduciary risk transfer.
Source: Planadviser.com, June 2018
Abstract: While the SEC has proposed to impose a limited, or transaction-based, best-interest standard on broker-dealers, that only applies to investment recommendations made to "retail customers." Based on the SEC's definitions, it does not appear that, for the court, retirement plans are retail customers. As a result, broker-dealer investment recommendations to retirement plans would not be covered by the best-interest standard.
Source: Investmentnews.com (registration may be required), June 2018
Abstract: The last deadline for resuscitating the fiduciary rule passed when the government declined to ask the U.S. Supreme court to reconsider the appeals court’s decision. The prospect of holding advisers accountable to retirement savers hasn't disappeared entirely, though. The SEC is considering its own version of the fiduciary rule, known as the best-interest rule.
Source: Bloomberg.com, June 2018
Abstract: Taco trucks. Thinking outside the box is often a valued attribute. In the retirement plan universe, it can find expression in arrangements and plan features that offer flexibility, liquidity and portability. But a recently released paper suggests that it is important to be mindful of fiduciary duties while embracing innovation.
Source: Asppa.org, June 2018
Abstract: Sophistication gaps always cause vulnerabilities because one can potentially take advantage of another and cause harm. There is an ethical element to this that seems to be absent in many dialogues with regards to this subject that is inevitably inescapable but is rather hard to grasp because its obligation was not created by a contract.
Source: 401khelpcenter.com, June 2018
Abstract: Since the clear majority of plan sponsors need to involve external plan managers in some capacity, it's important to understand how financial professionals of different classes differ in what they bring to the table. Two major categories of professional assistants are available to sponsors. Broadly speaking, they can be grouped as investment brokers and retirement plan consultants.
Source: Planpilot.com, June 2018
Abstract: Under ERISA, those who administer, manage, or control plan assets have a fiduciary duty to plan participants. This fiduciary duty requires them to act solely in the interest of plan participants and beneficiaries. It is important for plan fiduciaries to understand their roles and responsibilities in deciding whether to outsource some of the administrative tasks to a 3(16) administrative service provider.
Source: Bsllp.com, May 2018
Abstract: The FAB states that during the period from June 9, 2017 until after regulations or prohibited transaction exemptions or other administrative guidance have been issued, neither the DOL nor IRS will pursue prohibited transactions against investment advice fiduciaries who are working diligently and in good faith to comply with the impartial conduct standards for transactions that would have been exempted in the Best Interest Contract and Principal Transactions Exemptions, or treat such fiduciaries as violating the applicable prohibited transaction rules.
Source: Wagnerlawgroup.com, May 2018
Abstract: Under the FAB, DOL states that it "will not pursue prohibited transaction claims against investment advice fiduciaries who are working diligently and in good faith to comply with the impartial conduct standards for transactions that would have been exempted in the BIC Exemption and Principal Transactions Exemption, or treat such fiduciaries as violating the applicable prohibited transaction rules."
Source: Groom.com, May 2018
Abstract: The Proposed Interpretation sets forth the SEC's views of investment advisers' fiduciary duties under the Advisers Act, including the duties of care and loyalty, and the SEC's views on an investment adviser's ability to vary or modify the fiduciary duty. Such an interpretive proposal of an existing obligation, unlike a rule or form proposal, could have some legal effect from the date of its publication and could be cited in SEC enforcement proceedings.
Source: Akingump.com, May 2018
Abstract: Fred Reish, partner at Drinker, Biddle and Reath, told attendees of the Plan Sponsor Council of America 71st Annual National Conference, from his perspective, plan sponsors have a "best practices hat," meaning "plan sponsors have an option of going beyond looking at what benefits the participants or employer. Meeting minimal objectives of the law is not the goal."
Source: Plansponsor.com, May 2018
Abstract: Many plan sponsors falsely believe that loan defaults do not merit fiduciary attention. Yet the Employee Retirement Income Security Act characterizes plan loans as investments, requiring care and prudence to meet the fiduciary standard. With all the litigation targeting defined contribution plans, now is a good occasion for plan sponsors to re-evaluate their loan practices.
Source: Loaneraser.com, May 2018
Abstract: Since fiduciaries can be personally liable for losses caused by a fiduciary breach, and there are other ERISA penalties, committee members have a lot of exposure. The good news I was able to give him was that special fiduciary liability coverage is available in the market. It just requires purchasing the right policy. But the policies are not fungible.
Source: 401ktv.com, May 2018
Abstract: When it comes to being a workplace retirement plan fiduciary, the best defense is a good offense. That said, if your fiduciary plays are more about keeping yourself out of hot legal water than they are about doing what's in your participants' best interests, even your best defense may not be good enough.
Source: 401ktv.com, May 2018
Abstract: The Trump administration unveiled guidance aimed at the burgeoning socially responsible investment industry that left some investors scratching their heads. The Department of Labor, which oversees retirement-plan funds, published guidelines that said investments based on environmental, social and governance issues aren't always a "prudent choice" and that such factors shouldn't "too readily" be considered as economically relevant by fiduciaries.
Source: Investmentnews.com (registration may be required), April 2018
Abstract: Proxy voting and company engagement practices are moving from a mere compliance issue to an integral component of investment and risk management. The old "set it and forget it" approach which relies on off-the-shelf proxy voting processes has become a risky practice. Fiduciaries are well advised to re-evaluate how their legal obligations relate to use of proxy voting in this changing environment.
Source: Reinhartlaw.com, April 2018
Abstract: Given the high stakes, it is important that plan fiduciaries understand their duties and how best to fulfill them. For employers who have not yet undertaken the task, training of plan fiduciaries should be a top priority for 2018. This article reviews 10 key topics that should be included in an ERISA fiduciary training program.
Source: Thompsoncoburn.com, April 2018
Abstract: ERISA broadly prohibits plan fiduciaries from causing the plan to enter either a direct or an indirect transaction involving the plan or its assets that would have a potential for conflicts of interest. This one-page article provides an overview of these prohibited transactions.
Source: Boutwellfay.com, March 2018
Abstract: The Department of Labor's fiduciary rule may be on hold indefinitely, but that doesn't mean that fiduciary duties similarly are in limbo. This article offers some tips for meeting them.
Source: Asppa.org, March 2018
Abstract: Share class confusion is an increasing concern and focus of regulators. While it might seem like an evergreen and ongoing issue for the investment industry, a new wrinkle in the form of the fiduciary rule is adding a frenzied air.
Source: 401kspecialistmag.com, March 2018
Abstract: The running debate about the standards of care in the financial services industry is beginning in earnest. Pete Swisher provides a discussion of current fiduciary law and the country's options with respect to standards of care.
Source: Pentegra.com, March 2018
Abstract: While compliance pressures continue to rise for executives charged with overseeing their organizations' employee benefit plans that are qualified under ERISA, sophisticated technology solutions are beginning to offer a reassuring light at the end of a seemingly endless regulatory tunnel.
Source: Rolandcriss.com, March 2018
Abstract: Three key areas of vulnerability arise from last year's ERISA litigation. This article discusses these vulnerabilities in detail and suggest ways plan fiduciaries can defend against them and reduce their exposure to liability.
Source: Fiduciaryplangovernance.com, March 2018
Abstract: In Singh v. RadioShack Corp., the Plaintiffs held RadioShack stock in their 401k accounts after November 30, 2011. They appeal the dismissal by the district court of their claims that Defendants breached their fiduciary duties under ERISA by allowing plan participants to invest in RadioShack stock despite the company's descent into bankruptcy. The Fifth Circuit Court of Appeals affirmed the district court's dismissal.
Source: Erisalawyerblog.com, March 2018
Abstract: According to a recent survey of DC plan executives, many don't acknowledge their role as a fiduciary. You'd think fiduciary awareness would improve over time, but the surprising fact is that fiduciary awareness seems to be declining at a time when all roads are leading to greater fiduciary scrutiny in the marketplace.
Source: Hrexecutive.com, March 2018
Abstract: Fulfilling ERISA fiduciary responsibilities is a constant challenge. Carol Buckmann has been blogging and speaking about fiduciary best practices for many years. Her guidance for fiduciaries has been compiled in a new 2018 edition of the Intelligent Fiduciary Guide.
Source: Cohenbuckmann.com, March 2018
Abstract: Unfortunately for employers, the DOL has been aggressively challenging the adequacy of employer efforts to locate and contact missing participants. Numerous plan sponsors have received letters from the DOL during missing participant audits that threaten sanctions against plan fiduciaries for alleged violations of ERISA, despite a lack of definitive guidance on exactly how employers should follow up on a variety of challenges.
Source: Winston.com, February 2018
Abstract: An SEC fiduciary rule should provide investors clarity about the role of their adviser, enhanced protection and offer regulatory coordination, Chairman Jay Clayton said Friday. The SEC and DOL have promised to work together on investment-advice standards.
Source: Pionline.com, February 2018
Abstract: Legislation before the Maryland legislature would create a fiduciary duty for agents and investment advisers, as well as broker-dealers, to act "primarily for the benefit" of their clients.
Source: Ntsa-net.org, February 2018