COLLECTED WISDOM™ on Fiduciary Responsibility and Liability Issues
This archive contains not only the most current material on the topic, but also older items that are still relevant, provide background, perspective or are germane to the topic.
If you find a broken link or an items that you feel is outdate, irrelevant or no longer appropriate, please let us know.
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 Related News and Intelligence, and DOL's Final Fiduciary Rule and Best Interests Contract Requirement.
In seeking clarity about the "type" of 401k professional it has retained, plan sponsors often find the answers they are given to be incoherent with a slant in favor of the 401k industry instead of plan participants. The residual fuzziness plan sponsors are left feeling about this topic is a source of significant irritation to them. This comprehensive article attempts to peel back the fiduciary layers and unscramble the fiduciary fuzziness.
The failure to fully execute the fiduciary duties ERISA imposes upon 401k plan employers and administrators can lead to significant liability exposure. This article will help plan sponsors navigate the minefield of fiduciary liability including reviewing the litigation risk and suggesting some best practices.
Because of a number of factor including the recent class action lawsuits and a new focus by the Department of Labor and Internal Revenue Service on a number of issues including fees, plan sponsors need to be more vigilant. They also should take proactive steps to ensure that all plan fiduciaries have a good understanding of their obligations in overseeing the company's retirement plans. Here is a general overview of fiduciary duties and responsibilities.
Employers that are fiduciaries of participant-directed individual account plans subject to ERISA should be pleased with the position taken by the DOL in an information letter dated June 3, 2020, addressing the use of private equity investments in designated investment alternatives offered in Plans. The DOL states that subject to the standards and considerations outlined in the letter, a plan fiduciary would not violate its duties under sections 403 and 404 of ERISA solely because the fiduciary offers a professionally managed asset allocation fund with a private equity component as a designated investment alternative in a plan.
Source: Workforcebulletin.com, July 2020
Retirement plan fiduciaries are undoubtedly concerned about the effect of all the changes brought about by the pandemic and its effect on society and the stock market. Conducting a comprehensive review of a plan's investments, fees, and performance is in order to avoid litigation. Here are some considerations for fiduciaries navigating their duties in the wake of COVID-19.
Source: Hallbenefitslaw.com, July 2020
The proposed rule makes it clear that fiduciaries must select those investments based solely on financial considerations that impact the economic value of the investments. In other words, plan fiduciaries must not sacrifice performance or expose the plan participants and beneficiaries to additional risk by including investment options that primarily serve the non-financial interests of the plan fiduciaries.
Source: Icemiller.com, July 2020
ERISA Section 404 sets forth ERISA's general fiduciary duty provisions. Knowing when these stringent duties apply is critical. The fiduciary duties established under ERISA are routinely acknowledged as the "highest known to the law" and the consequences of noncompliance can be significant: ERISA Section 409 imposes personal liability on fiduciaries, to make good on retirement plan losses resulting from their actions or inactions, in fulfilling their duties under ERISA Section 404. This 23-page article goes into great detail on various fiduciary duty provisions and knowing when these stringent duties apply.
Source: Wagnerlawgroup.com, July 2020
The DOL released a proposed rule that will amend existing guidance governing a fiduciary's investment duties under ERISA. The proposed rule clarifies that plan fiduciaries must base their investment decisions solely on pecuniary factors: those that have a material effect on an investment's risk and return based on appropriate time horizons consistent with the plan's investment objectives and funding policy. In other words, plan fiduciaries must not sacrifice performance or expose plan participants and beneficiaries to increased financial risk to serve a non-pecuniary interest.
Source: Thompsonhine.com, July 2020
The DOL issued a proposed regulation amending the fiduciary regulations governing investment duties under ERISA. This proposed regulation guides an ERISA fiduciary considering an investment or investment strategy based on "non-pecuniary" factors such as environmental, social or corporate governance, or sustainability factors. The DOL indicated that its proposal is in response to increasing interest in ESG and sustainability investing and no clear standard for what constitutes an ESG investment.
Source: Beneficiallyyours.com, July 2020
Several key recordkeeping fee decisions are important for prudent plan fiduciaries to analyze carefully. More often than in the past, when plan sponsors benchmark their plan fees, they often use the opportunity to evaluate the way fees are allocated to participants and to make changes to the way fees are paid. Three key recordkeeping fee decisions that go directly to the heart of the question of how fees should be allocated across participants are discussed in this article. First is the decision as to the type of recordkeeping fee structure. Second is the decision around using a lowest-cost share class strategy for the investment menu versus a revenue-sharing model. Last is the decision of how to apply revenue sharing when there is an active decision to use that model or when it is unavoidable.
Source: Porteval.com, June 2020
This paper explains the doctrine commonly referred to as the fiduciary exception to the attorney-client privilege. It is important for plan sponsors, fiduciaries, and their legal advisors to understand the rules regarding when the fiduciary exception doctrine can result in communications between a plan fiduciary and an attorney not to be privileged and become susceptible to being produced in litigation. This paper also explains how the fiduciary exception doctrine has been used to try to obtain communications ordinarily protected by the attorney work product doctrine. The principles outlined in this paper can help employee benefits counsel and their clients better understand how best to protect the privacy of their communications and how to anticipate when these communications may be open to examination by plan participants.
Source: Amazonaws.com, June 2020
This article reviews two recent cases that considered claims by participants in 401k participant-directed investment plans that plan fiduciaries failed to prudently monitor investments in what fiduciaries claimed were brokerage windows or "similar plan arrangements." The article starts with a summary of what we know and what we don’t know about the legal status of brokerage windows and similar plan arrangements.
Source: Octoberthree.com, June 2020
While the guidance does not establish any new fiduciary rules or exemptions, it is nonetheless quite helpful in providing factors to be considered by fiduciaries in determining whether investment vehicles with private equity components belong in their plan investment menu. The Information Letter considers facts relevant to private equity investments, but the guidance can be applied more broadly to consideration of any alternative investment vehicle with similar characteristics.
Source: Wagnerlawgroup.com, June 2020
The DOL seeks to alleviate ERISA fiduciary liability concerns, first by limiting the use of private equity monies to investment components within larger, heavily diversified funds and, second, by focusing on the prudence of the private equity investment selection process itself. By following these precepts, the DOL believes that fiduciaries "may offer an asset allocation fund with a private equity component...in a manner consistent with the requirements of Title I of ERISA."
Source: Compliancedashboard.net, June 2020
DOL Information Letter Outlines Fiduciary Considerations for Including Private Equity in DC Plan Investments
The Letter emphasizes that selection and monitoring of an investment option with private equity are subject to the same fiduciary considerations as other investments (including the duties to be prudent and loyal, and the duty to avoid prohibited transactions). At a high level, this includes evaluating whether the potential upside from the investment justifies the added risk, fees, complexity, and valuation and liquidity issues. The Letter lists specific considerations.
Source: Erisapracticecenter.com, June 2020
ERISA fiduciaries may want to identify steps they should be taking and decisions they should be considering to adjust their process in the face of the coronavirus pandemic. This article identifies six such points that could be appropriate for consideration by retirement plan fiduciaries, such as fiduciary committees, as the pandemic and related economic fallout continue to evolve.
Source: Morganlewis.com, May 2020
Almost every employer that sponsors a retirement plan should be concerned about potential liability for a type of exposure known as excessive fee claims. Historically filed against only the largest organizations, an increasing number of smaller retirement plans have faced excessive fee litigation over the past couple of years. With this surge in litigation, it's important that all fiduciaries, regardless of plan size, understand the history and recent trends relating to excessive fee claims, the plan features that may make it a target of litigation, and steps fiduciaries can take that may reduce exposure to excessive fee claims.
Source: Chubb.com, May 2020
Abbott, as the plan sponsor, is a fiduciary and was responsible for supervising Alight's procedures for safeguarding plan assets, yet the complaint provides no information about what Abbot did or did not do to monitor Alight. Abbott may also have breached its duties of loyalty and prudence by its failure to hire a vendor with adequate internal procedures. In that event, Abbott and its fiduciaries would also be required to restore the loss.
Source: Cohenbuckmann.com, April 2020
A recently-filed lawsuit describes in specific detail the efforts cybercriminals often take to pilfer assets from retirement accounts. As a complaint, the filing provides only the plaintiff's version of what happened, and we have not yet heard from the defendants. But the complaint is particularly interesting in its description of how the theft occurred and may point to some useful approaches to try to reduce future fraud.
Source: Groom.com, April 2020
The District of Massachusetts issued a decision finding that Fidelity breached its fiduciary duties to its 401k Plan by failing to monitor investments and administrative expenses. Although the decision involved unique facts relating to the implementation of a settlement of a prior case brought against Fidelity, the court's 67-page opinion addresses several significant legal issues. These issues include a plan fiduciary's obligations to self-directed brokerage accounts and the consideration of collective investment trusts and separate accounts as alternatives to mutual funds.
Source: Groom.com, April 2020
COVID-19 may have accelerated a reckoning for fiduciaries who have not fulfilled their responsibilities for target-date fund selection. Those who simply selected their vendor's funds without investigation and financial firms that selected their proprietary funds for their plans, especially funds without good track records, are probably most at risk. However, fiduciaries with exposure can begin to reduce that exposure by reviewing their selections and implementing a prudent review process. Here are some questions frequently asked about target-date fund selection.
Source: Cohenbuckmann.com, April 2020
With the business disruptions and market turbulence being wrought by COVID-19, many employers sponsoring qualified retirement plans are facing key decisions about their plans. Some of the most important fiduciary issues an employer may wish to consider in light of COVID-19 and depending on the type of qualified plan it sponsors are reviewed here.
Source: Benefitslawadvisor.com, April 2020
Based on past litigation experience, there are some types of investments that are considerably more likely to be the target of claims under ERISA. This article reviews these claims and also offers some thoughts on preventative measures that plan sponsors and fiduciaries can consider.
Source: Proskauer.com, April 2020
The realities of the Coronavirus pandemic have quickly and dramatically changed the way we work, shop, seek health care, and interact with each other. The employer sponsors of 401k plans and any employer-based fiduciary investment committees should consider taking steps now in response to these developments.
Source: Dickinson-wright.com, March 2020
Training new retirement plan committee members, as well as providing ongoing training throughout the year for all members, is critical, industry experts say. "Because their responsibilities are so enormous, we need to do a better job of training these fiduciaries to make better decisions," says Joshua Itzoe, a partner and managing director with Greenspring Advisors. This article reviews some best practices.
Source: Plansponsor.com, January 2020
For many plan sponsors, designating an ERISA 3(38) investment manager to manage, select, and monitor the retirement plan's investments can be beneficial. It allows the plan sponsor to have more time and attention to focus on other aspects of the organization along with managing tasks that are otherwise difficult to outsource. There are many benefits if you decide to hire a 3(38) fiduciary, but it's important to understand the advantages and disadvantages of their role and the questions you should ask when vetting an investment advisor/manager to take on the role for your retirement plan.
Source: Planpilot.com, January 2020
The U.S. District Court for the Western District of Pennsylvania in Scalia v. WPN Corporation wrote regarding the duty to monitor investment fiduciaries. Given the potential risk related to a breach this fiduciary duty, the WPN opinion is likely to be an important one for Appointing Fiduciaries. In its opinion, the WPN court provided the guidance for assessing the extent to which an Appointing Fiduciary has a duty to monitor and, if so, for determining whether the Appointing Fiduciary has fulfilled that duty.
Source: Financialservicesemploymentlaw.com, December 2019
A recently released case highlights the protection afforded by a retirement plan committee that takes its role seriously. In Scalia v. WPN Corp., a Pennsylvania federal court ruled that the U.S. Department of Labor was wrong in its insistence that retirement committee members were liable under ERISA for failing to monitor the committee's investment manager.
Source: Carltonfields.com, November 2019
The trend of commercial database breaches involving the disclosure of personally identifiable information does not appear to be slowing down. Recent large scale PII breaches of other companies can negatively impact your retirement plan and participants. Cyber criminals are becoming more sophisticated and with the glut of PII available to them, in combination with other techniques such as phishing and malware, retirement accounts are being put at risk of fraudulent access and distribution of funds. As a retirement plan sponsor and fiduciary, there are steps you should take to mitigate the risk of fraud from occurring within your plan.
Source: Newportgroup.com, November 2019
ERISA was enacted before the computer age, and it has never been amended or interpreted to impose a specific duty on plan fiduciaries to maintain appropriate cybersecurity protections. However, fiduciaries should not have their heads in the sand about this issue. The duties of prudence and loyalty will likely be interpreted to include a responsibility to keep plan assets safe from hackers. A lawsuit recently filed against Estee Lauder Inc, its 401k plan committee, recordkeeper and custodian highlights some security flaws in plan distribution procedures and has the potential to make new law in this area.
Source: Cohenbuckmann.com, October 2019
Surveys still find that, many plan sponsor representatives who oversee their companies' 401k or other DC plans don't realize that they are fiduciaries under ERISA. And some believe they can offload all of their fiduciary responsibilities for investments to a third party. Plan sponsors who harbor misperceptions like these or who are unaware of their fiduciary status risk violating ERISA's fiduciary standards, harming participants and exposing themselves and their firms to liability. A sound understanding of fiduciary status, responsibilities, liabilities and protections can help ensure that plans are well administered and continue to evolve for the best interests of participants while protecting individual plan fiduciaries and their organizations.
Source: Jpmorgan.com, October 2019
Given the potential dollar amounts at stake, plan fiduciaries should monitor evolving cybersecurity threats and industry standards for dealing with them and take steps to avoid potential attacks on their own plans. This 4-page article evaluates the current legal landscape and highlights some best practices for plan fiduciaries to reduce the cybersecurity risks to their plans.
Source: Eversheds-sutherland.com, October 2019
While mistakes may result in fines and penalties, misconceptions can lead to bad results for the organization and its employees. Bad advice from a plan sponsor's trusted third party, whether intentional or negligent, can produce inertia and a lack of trust in the entire system. Here are the top 10 fiduciary misconceptions based on importance or what is most common.
Source: Investmentnews.com (registration may be required), September 2019
If the board of directors adopts a 401k plan, the plan document does not name the company plan sponsor as a named fiduciary but instead names, for example, a benefits committee (comprising subject matter expert employees), and the board exercises no discretion regarding the membership of the committee, the administration of the plan or its investments, then the board has best positioned itself to argue that it is not a plan fiduciary subject to a claim of a breach of fiduciary duties. Not only that, but it has prudently set into motion the best governance practices for the plan.
Source: Pillsburylaw.com, September 2019
Fiduciaries owe a duty of loyalty to plan participants and must discharge their duties solely in the interest of plan participants and beneficiaries. Ignoring online threats could potentially violate this duty. This article reviews some proactive steps plan fiduciaries can take to protect participant data and account balances.
Source: Shrm.org, August 2019
Periodic training updates for retirement plan committee members acting in a fiduciary capacity is a prudent approach ensuring that they maintain the current knowledge essential to carry out their duties. More fundamental is ensuring that new committee members get a strong grounding in plan operations and their responsibilities promptly on being appointed to a plan committee, if not before.
Source: Orba.com, August 2019
A strong governance process benefits the sponsor, the participants, and meets many of the items on the fiduciary checklist. It lowers the risk of potential liabilities that come with a breach of fiduciary responsibility, which could lead to penalties and fines being imposed, as well as expensive and lengthy lawsuits. It reduces the risk potential that a plan is disqualified by the DOL or IRS and lowers potential operating expenses. This article reviews what steps to take to develop an effective plan governance procedure.
Source: Planpilot.com, August 2019
There is a special service provider you can hire to take over many of the legal responsibilities in running a 401k plan, called a 3(16) administrator after a provision in ERISA. More plans are considering hiring 3(16) administrators, but like all methods of outsourcing fiduciary responsibility, there are pros and cons to consider before signing on the dotted line.
Source: 401ktv.com, July 2019
A recent federal court decision should remind us all of the importance of plan committee education. The case involved a suit by participants in the SunTrust 401k plan that challenged the initial selection of, and subsequent acquiescence with, an ostensibly imprudent plan investment menu. The court's decision focused on one aspect of the case: the liability of "new" plan committee members for actions that predated their involvement on the committee but continued after their involvement.
Source: Napa-net.org, July 2019
Selecting an auditor for an ERISA plan is one of those fiduciary responsibilities which has been a continuing concern of the Department of Labor. If you are a plan sponsor with that fiduciary responsibility, here are a few mistakes to avoid in the auditor selection process.
Source: Retirementplanblog.com, July 2019
The overall duty of a fiduciary is to manage retirement plan investments and administer these investments prudently. This may sound simple, however, there is a lot of responsibility for these decisions, and it can become heavily burdensome. In addition, the main difference between 3(21) versus 3(38) is that a 3(21) fiduciary is an investment adviser for the organization without discretionary authority. A 3(38) fiduciary, however, is an investment manager and will make actual decisions about what to include in the plan menu as well as implementing it.
Source: Planpilot.com, July 2019
The various duties owed by private equity fund managers to their clients are often referred to collectively as "fiduciary duty," as if that were a term that has a clear and consistent meaning. In reality, fiduciary duty means different things in different jurisdictions and in different contexts and, as a blanket statement of legal obligations, implies little more than a special relationship that has trust and confidence at its heart. Although fiduciaries have certain duties imposed on them by law, and may face tougher consequences if they breach those duties, the precise nature and extent of their duties can vary considerably.
Source: Debevoise.com, June 2019
This 19-page Legal Update reviews recent trends, considerations under the Employee Retirement Income Security Act of 1974, as amended, and potential legal risks arising out of the investment of defined contribution plans in alternative asset classes.
Source: Mayerbrown.com, June 2019
Company fiduciaries have a duty to seek professional help with investments if they need it. An ERISA attorney who's spent over 35 years helping hundreds of 401k plan sponsors explains the choices and decision issues.
Source: Forusall.com, June 2019
As a retirement plan sponsor, one of the biggest steps toward ensuring regulatory compliance includes establishing a committee to manage the plan. Setting forth clear objectives and direction for the composition and function of your retirement plan committee can be the key to its success. In this article, learn about some standard objectives and responsibilities for your committee, with a specific view towards its investment responsibilities.
Source: Planpilot.com, May 2019
Failure to understand how they must operate exposes fiduciaries and plan sponsors to lawsuits. It also hurts participants who may have a plan that isn't run properly and has poorly performing and expensive investments. While there isn't any legal requirement that committee members have fiduciary training, Department of Labor auditors will ask about it. They also view training as an indication that the members take their responsibilities seriously.
Source: Penchecks.com, May 2019
There is a growing interest in including funds that emphasize environmental, social, and governance factors in 401k plan investment menus, in response (in part at least) to participant interest in these funds and the increased participant engagement they generate. What issues does inclusion of an ESG fund in the plan's fund menu raise for plan fiduciaries?
Source: Octoberthree.com, May 2019
Plan sponsors may have a false sense of security when it comes to the fiduciary risk related to 401k loans. What they may not recognize is that participant loans are plan investments and must be managed with the same prudence and oversight required for any plan investment. The risk is heighted by several factors: the increased focus on 401k plans as a source of litigation; an alarming rate of loan defaults, as reflected in academic and industry studies; and a misguided belief that disclosure provides adequate protection. This 6-page paper explores these issues.
Source: Loaneraser.com, April 2019
Tussey v. ABB Closes With $55 Million Settlement; Complex Case Changed Views of Fees, Fiduciary Duty
Tussey v. ABB, after winding through earlier settlement awards to the plaintiffs, two appellate hearings in the 8th Circuit, and double rejections by the U.S. Supreme Court, ultimately will be remembered both as a case about plan sponsors' fiduciary duties and one that defined how to quantify participant losses from related breaches. As a result, the retirement plan industry has moved in a unified way to press for reductions in service provider fees, opt for lower-cost share classes, and insist upon greater transparency for recordkeeping and asset management costs.
Source: Blr.com, April 2019
Employers and plan sponsors who have not taken the proper steps to mitigate their liability with respect to the provisions of Section 404(a) of ERISA run the potential for drawn out litigation and the financial risk associated with failing to adhere to the "Prudent Person Rule." This requirement may cause you to consider whether you wish to continue to assume the role of a Section 3(21) plan fiduciary or outsource investment oversight to a Section 3(38) Investment Manager.
Source: Planpilot.com, April 2019
Plan fiduciaries, regardless of their title, are expected to perform their duties solely in the best interests of plan participants and their beneficiaries. In addition, plan fiduciaries are expected to act prudently. Failing to do so, and failing to comply with Department of Labor fiduciary responsibilities, can lead to a fiduciary liability lawsuit. This article provides actionable suggestions on avoiding fiduciary liability in 2019.
Source: Hallbenefitslaw.com, March 2019
Fulfilling fiduciary duties is an outcome of successfully integrating processes and methodologies that require different skillsets. All major decisions should be made with only the economic interests of the plan participants in mind. Failure to do so increases the likelihood of a breach of fiduciary duty. Here is a Plan's Sponsor's road-map to successfully fulfill fiduciary duties.
Source: 401khelpcenter.com, March 2019
This 10-page paper is intended to provide a summary of ERISA and the role of an independent fiduciary, including when an independent fiduciary must be engaged or should be engaged, the benefits associated with having an independent fiduciary and certain practical considerations.
Source: Ajg.com, February 2019
This 17-page paper examines the potential influence that digital design can have on one's retirement savings decisions. As the use of digital and mobile technologies continues to increase, the paper proposes that plan sponsors and advisors have a responsibility to consider websites and apps that encourage better retirement decision-making, applying the same oversight and diligence that they currently utilize for plan design and investment selection.
Source: Voya.com, January 2019
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
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
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
Finding missing participants can be frustrating and time-consuming, but employers and plan sponsors have the fiduciary responsibility to provide communication, statements and disclosures to them just as often as active employees. The DOL and IRS has published guidance for locating missing participants.
Source: Watkinsross.com, November 2018
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
This 5-page white paper is for plan sponsor representatives who desire to know more about key fiduciary issues: (1) the high standards applicable to a fiduciary; (2) a fiduciary's core responsibilities; (3) the danger of working with a non-fiduciary; and, (4) what they should expect from a strong fiduciary partner.
Source: Qualifiedplanadvisors.com, October 2018
Fiduciary liability insurance is an important, but often overlooked, aspect of a company's risk management plan. This article discusses the use of fiduciary insurance in protecting fiduciaries from liability when governing or providing services for employee benefit plans subject to the Employee Retirement Income Security Act.
Source: Ckrlaw.com, October 2018
One might think that there is a lower level of liability risk for plan fiduciaries where a brokerage window is available, particularly where the window supplements a menu of selected investment options, because it gives plan participants greater choice without any expectation that the fiduciaries are responsible for each investment available through the window. However, there can still be fiduciary obligations related to offering the brokerage window that, if not met, could trigger liability.
Source: Morganlewis.com, August 2018
Plan fiduciaries of 403b plans face some unique challenges and making mistakes can expose these fiduciaries to liability. Following 403b fiduciary best practices can help reduce the risk of lawsuits and avoid ERISA compliance violations.
Source: Bsllp.com, August 2018
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
In Meiners v. Wells Fargo & Company, the U.S. Court of Appeals for the Eighth Circuit clarified the burden plaintiffs must meet to state a claim for breach of fiduciary duty under ERISA based on the inclusion of allegedly underperforming and expensive investment funds. Because plaintiffs often lack detailed information about the process plan fiduciaries followed to make investment choices, pleading a plausible claim that those fiduciaries have acted imprudently can pose a significant challenge.
Source: Kslaw.com, August 2018
When employees allege the employer or plan sponsor has not acted in the sole interest of the participants or followed the plan requirements, the plan sponsor may be liable for losses and damages which result. However, by following the best practices for defined contribution plan fiduciaries, plan sponsors can avoid litigation and limit potential losses.
Source: Bsllp.com, August 2018
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
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
While many argue about how many financial professionals can dance on the head of the fiduciary pin, the answer to "Who is a fiduciary?" has always been there. It comes in the form of a written document called a "Limited Power of Attorney." Registered Investment Advisers, at least those with the direct authority to trade client assets, can only do so under this legal agreement. Indeed, it can be argued that fiduciary "advice" cannot be given without the existence of a Limited Power of Attorney. This makes the LPOA a very special instrument.
Source: Fiduciarynews.com, May 2018
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
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
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
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
For those fiduciaries self-aware enough to know there are things they need to learn, here are some suggestions for ways they can raise the bar in fulfilling their fiduciary responsibilities.
Source: Cohenbuckmann.com, February 2018
Retirement plan sponsors need to understand the increased potential liability as plan fiduciaries and the best way to understand the changes that have taken place in the 401k plan business over the last 20 years. This article will let 401k plan sponsors understand how and why they need to be more vigilant in their role as a 401k plan fiduciary.
Source: Jdsupra.com, December 2017
As cybersecurity threats increase, so should plan fiduciary efforts to combat these threats. Fiduciaries can work with service providers to strengthen existing protections and can work internally to create and document procedures that demonstrate prudent process.
Source: Groom.com, November 2017
This article examines the manner in which the fiduciary rule, and in particular the BIC Exemption, affect business best practices regardless of whether any changes are made to the fiduciary rule and related exemptions.
Source: Wagnerlawgroup.com, October 2017
Retirement plan committees have a host of responsibilities, most of them fiduciary. To help them fulfill their varied, and demanding, fiduciary role, advisers can turn to a number of practical strategies.
Source: Planadviser.com, October 2017
If there had been any doubt, the last few years have made clear that lawsuits against all parties involved with retirement and welfare plans are here to stay. Indeed, plan sponsors and fiduciaries now face increased risks of litigation on many fronts, and the need for comprehensive fiduciary liability insurance is greater than ever. This white paper discusses the responsibilities of ERISA fiduciaries and the types of litigation that may be brought against them, as well as some practical suggestions on plan design and administration that may help reduce litigation risk.
Source: Groom.com, October 2017
Effective governance of their DC plans helps employers meet fiduciary responsibilities, abide by regulatory requirements, and minimize the risk of litigation and negative press. This 13-page report identifies ways in which committee structure, composition -- and even the number of meetings and those responsible for meeting agendas -- have important implications for the priorities, challenges, and effectiveness of DC plan governance.
Source: Callan.com, October 2017
In the complex and litigation-prone world DC plans occupy, it is important to underline what the real focal points for fiduciaries should be. Here are five guiding principles under ERISA that can aid fiduciaries in selecting and monitoring investment options and assessing active strategies within their plan lineups.
Source: Troweprice.com, September 2017
While the DOL has provided guidance on the overall responsibilities of plan sponsors, these guidelines fall short of speaking to best practices when dealing with recordkeepers. This 7-page paper aims to help plan fiduciaries maximize their recordkeeper relationships with the end goal of better retirement outcomes.
Source: Porteval.com, September 2017
This article describes "impact investing" and reviews how fiduciary duties applicable to managers of pension plan assets and charitable institution assets permit and restrict the use of nonfinancial factors in managing those assets.
Source: Steptoe.com, September 2017
If an investment adviser makes a recommendation to a retirement plan sponsor or investment manager, who then follows that recommendation and later challenges it as a breach of fiduciary duty, there are several types of defenses available to the adviser.
Source: Investmentnews.com (registration may be required), September 2017
A common theme running through class-action lawsuits filed against plan fiduciaries is the violation caused by not properly understanding and addressing the fees of their 401k plan. The article describes three methods for determining if plan fees are reasonable.
Source: Morganstanleyfa.com, August 2017
"Procedural Prudence" is not a new concept. It underlies one of ERISA's bedrock requirements. A fiduciary must discharge their duties prudently with care, skill, and diligence. It's the process by which a fiduciary can accomplish this. Here are seven practical considerations for fiduciaries to shore up their defenses and improve their governance practices.
Source: Retirementplanblog.com, August 2017
Failing to follow best practices may leave a fiduciary personally liable for losses to the plan and result in removal from their duties. There are a number of actions fiduciaries can take to limit potential liability.
Source: Bsllp.com, August 2017
Defined contribution plan sponsors often worry about landing in hot water for doing the wrong thing. However, many fiduciary issues crop up because plan sponsors have failed to take action. Here, we list eight potential fiduciary traps and suggest ways to avoid them.
Source: Callan.com, July 2017
Vendors who service retirement plans will use the terms 3(16), 3(21) and 3(38) to describe their service offering. The terms have often been taken for granted, and sometimes abused by service providers looking for a marketing edge. This article offers some clarification and understanding regarding the terms.
Source: Alliantwealth.com, May 2017
In an environment of increased fiduciary litigation, advisors and other service providers have ramped up their marketing efforts to provide risk management services to plan sponsors. Such efforts have resulted in plan sponsor confusion as to the type of services that are being offered, as well as the type of services that are preferable.
Source: Cammackretirement.com, April 2017
As a plan fiduciary, you have a responsibility to ensure your service providers' compensation is reasonable relative to the services provided. A fiduciary process for assessing fees can help meet your obligation to provide a plan that operates in the best interest of your employees. Your plan provider or consultant can help you navigate this process by helping you answer four key questions.
Source: Tiaa.org, March 2017
Plan fiduciaries worry not only about being a target of class action lawsuits, but also about the possibility of being selected for an IRS or Department of Labor audit. More and more fiduciaries are coming to realize that memorializing a set of carefully-thought out plan policies and following them can be their best defense in these situations.
Source: Cohenbuckmann.com, March 2017
Plan sponsors face increasingly complex fiduciary requirements, as well as pressure to provide an optimal plan experience for participants at a reasonable cost. Making investment selection decisions under these conditions can prove challenging. This white paper aims to help fiduciaries navigate the waters of plan investment selection and monitoring processes.
Source: Troweprice.com, March 2017
Fee reasonableness is a fundamental and widely discussed fiduciary topic. Despite the importance of the topic, the DOL hasn't given much insight or guidance as to what is considered a reasonable fee. As a result, much of the interpretation of what is and is not reasonable has come from the courts. As a fiduciary, it is important to turn to litigation for guidance, acknowledge how excessive fee allegations have evolved, and most importantly, to appropriately manage this risk in the future.
Source: Manning-Napier.com, March 2017
Retirement plans are increasingly in the crosshairs for plaintiffs' lawyers. Allegations of breach of fiduciary duty based on payment of higher-than-reasonable fees to ERISA plan service providers are becoming more common. In the past 18 months, at least 38 ERISA class actions have been filed.
Source: Lockton.com, February 2017
Employers that sponsor a retirement plan face a host of potential issues to consider both before and after a corporate merger or acquisition. These topics can be complex and often require appropriate analysis and planning prior to an acquisition in order to meet the goals of all parties and the needs of the affected employees.
Source: Vanguard.com, December 2016
How much work and liability do you want to take on? How much expertise can you delegate internally? What do you want your team to spend their time on? This article compares the full spectrum of work you can delegate out to an ERISA fiduciary.
Source: Forusall.com, November 2016
This 9-page paper starts by understanding the decades old federal law that establishes the duties of a fiduciary and then explore how advisors who find themselves in a fiduciary role can demonstrate compliance.
Source: Sourcemedia.com, November 2016
In the this interview with Stephen Abramson, president of APS Pension Services, Mr. Abramson response to the following questions: How often should plan sponsors review their third-party fiduciaries, what are plan sponsors doing to become better fiduciaries, and how should retirement plan managers convince the plan's fiduciaries to take their fiduciary responsibility seriously?
Source: Psca-mobile.org, November 2016
Given intensifying scrutiny of fiduciaries in the courts and public-square, PSCA encourages readers to understand the nuanced world of fiduciary services, to educate colleagues about the role and importance of the fiduciary, and to lead their organization's through conversations about whether outsourcing fiduciary services will work for the organization.
Source: Psca-mobile.org, November 2016
ERISA does not prohibit retirement plan revenue sharing or even the retention of revenue sharing payments by retirement plan service providers. So, what's the concern? What do 401k plan fiduciaries need to know about revenue sharing? Here are some answers.
Source: Klgates.com, November 2016
This 4-page 'checklist' covers areas of review that retirement plan fiduciaries may want to consider when fulfilling their fiduciary responsibilities.
Source: Troweprice.com, October 2016
This is the slide deck from a recent webinar that reviewed the recurring claims against retirement plan sponsors and the steps fiduciaries may consider taking to document and to demonstrate prudence, shielding themselves against similar class action suits. Presenters were Richard J. Pearl, attorney at Drinker Biddle & Reath, and Erik Daley, Managing Principal for the Multnomah Group.
Source: Multnomahgroup.com, September 2016
NAGDCA created this 11-page Fiduciary Responsibility Brochure to guide a fiduciary of a governmental participant directed DC plan through the basic fiduciary responsibilities imposed upon plan sponsors. It provides a simple explanation of fiduciary standards of conduct.
Source: Nagdca.org, September 2016
In today's evolving legal, regulatory, and litigation environments, it is more important than ever that employee benefit plan fiduciaries understand their roles and responsibilities. This 78-page guidebook serves as a roadmap to your fiduciary duties and provides plan fiduciaries with tools to assist in complying with ERISA's fiduciary responsibilities.
Source: Vanguard.com, August 2016
Am I a retirement plan fiduciary? Many plan sponsors simply don't know. Find out in five questions during this 1:43 minute video.
Source: Youtu.be, August 2016
Designating a 3(38) investment advisor can be a beneficial choice for plan sponsors. But when reviewing this option plan sponsors need to determine if it is in the best interest of the participants to hire this type of advisor. This article outlines some of the advantages and disadvantages that plan sponsors should investigate when considering this option.
Source: 401kspecialistmag.com, August 2016
Fiduciary duties and responsibilities are a growing responsibility for workplace retirement plan sponsors. This 60-page guide is an introductory fiduciary resource for defined contribution retirement plan sponsors and their employees working with the plan. It streamlines complex fiduciary topics into an easy-to-understand format.
Source: Troweprice.com, August 2016
This 7-page checklist sets an agenda for quarterly retirement committee meetings and helps document plan topics that should be addressed at least annually. Each quarter's focus subject is intended to be a primary topic discussion for the committee, though other matters will also be discussed.
Source: Lockton.com, July 2016
This essay calls attention to the regulatory imposition of the prudent investor rule on financial advisers to retirement savers. The essay also canvasses the basic tenets of the prudent investor rule, highlighting its nature as principles-based rather than prescriptive, and the customary role of an investment policy statement in compliance by professional fiduciaries.
Source: Ssrn.com, June 2016
The Department of Labor is beginning to examine the training of plan committee fiduciaries. Training has also come up in 401k lawsuits lately and the fact that a committee has received fiduciary training has been viewed as favorable. Article discuss why advisers should consider helping plan sponsors with this task.
Source: Planadviser.com, May 2016
Fred Reish and Joan Neri Answer the question, "Am I subject to liability if I learn that a one of these committees is about to commit a fiduciary breach or engage in a transaction prohibited by ERISA?"
Source: Planadviser.com, April 2016
ERISA requires that an adviser act as a "prudent expert" when making a recommendation, while FINRA requires that the adviser "have a reasonable basis to believe" that a recommendation is "suitable." The purpose of this article is to give advisers a high-level overview of these standards of conduct and to highlight some differences and similarities.
Source: Planadviser.com, April 2016
Based on Fred Reish's review of the DOL's fiduciary rule and conversations with his clients, here are some of his overview thoughts about the regulation and the two distribution exemptions (84-24 and BICE).
Source: Fredreish.com, April 2016
The DOL issued a final rule defining the term fiduciary for investment advisers and brokers providing investment advice to participants and beneficiaries of employee benefit plans governed by ERISA and individual retirement accounts. The final rule makes several modifications and clarifications to the proposed rule. In conjunction, the DOL also issued amended versions of prohibited transaction exemptions.
Source: Practicallaw.com, April 2016
This lengthy article provides an in-depth look at the keystone of the new fiduciary rule as it pertains to advisors working with individual retirement accounts: the new "Best Interests Contract Exemption," which most broker-dealers and insurance companies will rely upon in their future attempts to provide conflicted advice to IRAs for commission compensation, and the creation of the new "Level Fee Fiduciary" safe harbor.
Source: Kitces.com, April 2016
Managing missing participant funds has been somewhat of a gray area within the retirement plan industry. But now, the DOL has decided to increase its scrutiny of benefit payment practices -- including the way plan sponsors and trustees search for missing participants and manage their unclaimed accounts -- to ensure that retirement plan trustees fulfill their fiduciary responsibilities to plan participants. This 4-page paper offers an overview and practical tips.
Source: Penchecks.com, April 2016
The defined contribution marketplace and the sophistication of ERISA plan fiduciary has come a long way in recent years. This has resulted in changes in the best practices of those tasked with sponsoring and administering retirement plans governed by ERISA. This article is a summary of some of those best practices.
Source: Wagnerlawgroup.com, April 2016
As rumored, this morning the Department of Labor finalized a rule and related exemptions that are intended to ensure that retirement savers get investment advice in their best interest -- commonly called the fiduciary or conflict of interest rule.
Source: 401khelpcenter.com, April 2016
A rising number of challenges are being initiated by the plaintiffs' bar and DOL investigators in the area of retirement plan asset charges and retirement plan expenses. Retirement plan sponsors and other plan fiduciaries should take heed of this trend and consider taking the actions outlined here.
Source: Poynerspruill.com, March 2016
Plan sponsor and plan fiduciary need to understand their responsibilities. This 12-page guide will assist plan fiduciaries in identifying and executing their responsibilities in sponsoring a defined contribution plan that is subject to ERISA.
Source: Principal.com, March 2016
In the event of a Department of Labor or IRS audit, it's important to have detailed documentation to prove you've followed the rules of your plan and those outlined by ERISA. This log report provides space to record the activities you complete in 2016 for your company's defined contribution plan.
Source: Principal.com, March 2016
Keeping track of your retirement plan's fiduciary documents is critical, but can be cumbersome. This checklist helps you understand which documents to store and retain. Simply review, check off and store your 2016 fiduciary documents together in one place.
Source: Principal.com, March 2016
Hiring a 3(38) investment manager is like outsourcing any other HR function. While you have outsourced the work and liability, you cannot step away from the process. You must still monitor the service provider to make sure it is fulfilling its contractual obligations. Article reviews a handful of questions to consider when creating a framework to monitor a 3(38) investment manager.
Source: Captrustadvisors.com, March 2016
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