Saturday, July 04, 2015

The Course of Human Events

It is easy, looking back, to gloss over just how remarkable was the sequence of events that made this nation’s independence a reality. The bickering and machinations of the Continental Congress in 1776 were every bit as unpleasant, and unproductive, as the worst of today’s elected officials — even though, and perhaps in some measure because, hostilities with Great Britain had officially been underway since the so-called “shot heard ‘round the world” the preceding spring.

The men who gathered in Philadelphia that summer to bring together what was not yet a “new nation” came from all walks of life. Still, it seems fair to say that most had something to lose, both financially and in terms of the personal liberty they advocated as an “unalienable” right. True, many were merchants (some wealthy, including President of Congress John Hancock) already chafing under the tax burdens imposed by British rule, and perhaps they could see a day when their actions would accrue to their economic benefit. But they could hardly have undertaken that declaration of independence without a very real concern that they might well have signed their death warrants.

Ironically, despite the celebrations on the 4th, the resolution that declared that “these United Colonies are, and of right, ought to be, Free and Independent States” was approved by the Continental Congress on July 2. In fact, only President of Congress John Hancock and Charles Thomson, secretary, signed it on the 4th (the former famously in a hand “large enough for King George to read without his spectacles”). Most of the 56 delegates didn’t sign it for another month. One didn’t sign until 1781.

Of course, that “declaration” didn’t magically make it so. The winter at Valley Forge and many other disappointments still lay ahead. The surrender of Cornwallis at Yorktown was still more than five years off, and an official end to the hostilities would not come until two years after that, in 1783.

This week most will commemorate the declaration of this nation’s independence as a unifying experience. And yet, just “four score and seven years” later, as the nation approached another Independence Day celebration, President Abraham Lincoln would find himself in the middle of an enormously unpopular war fought to keep the nation together, even as two massive armies converged at a crossroads community called Gettysburg.

Even in 1776, historians have suggested that only about a third of the colonial citizenry actually favored independence, while a third remained loyal to Britain — and the remainder apparently just wanted to be left alone.

It seems only right then that today, as part of this “course of human events” and perhaps particularly at this time when our nation seems so deeply divided on a number of issues, that we remember not only the differences, but the sacrifices, large and small, that have made this great nation possible.

- Nevin E. Adams, JD

You can read more about the Declaration of Independence here.

Friday, July 03, 2015

4 Steps Toward Financial Independence

While retirement and retirement savings may not be high on your Independence Day weekend agenda, it can be a good time to focus on things that have been pushed aside for more pressing priorities.

Here are four steps you can take this weekend that can help put you on the road to achieve financial independence.

1. Figure Out How Much You Need

Yogi Berra once famously noted that if you don’t know where you’re going, you might not get there.
Effective savings strategies start with a goal, something to aim for. For many, retirement savings goals seem impossible to set. After all, there’s no “blue book” on the cost or quality of retirement — no single answer to the question, “How much do I need?” As a result, many people fear that their estimates “aren’t even in the ballpark” of what will be required. The 2015 Retirement Confidence Survey affirmed a long-standing trend — that most haven’t made even a single attempt to figure out what they might need for retirement.

There are, however, tools that can help you set a reasonable target. If your workplace retirement plan doesn’t currently provide that option, the Ballpark E$timate at www.choosetosave.org is free, thorough, and won’t require much of your weekend to come up with a target based on your individual circumstances.

2. Rebalance Your Account

While a growing number of individuals take advantage of strategies like managed accounts and target-date funds — options that are regularly rebalanced by investment professionals — to invest their 401(k) balances, many workers (especially older ones) still make individual fund selections, either on their own or with the help of an advisor. The problem is, we’re often too busy to go back and review those decisions. Unfortunately, left unattended too long, market movements can leave even the best investment choices out of balance and produce results that are unintended.

If you haven’t rebalanced your account in a while (or can’t remember when you did), take advantage of the long weekend to do so.

Note: if you are using a strategy like a target-date fund, balanced fund or managed account with your workplace plan, you shouldn’t need to rebalance. And if you’re not using one of those options, this might be a good opportunity to consider making a change.

3. Bump Up That Contribution Rate

Like those investment choices, most of us make a decision about how much to save once, frequently when we first join the plan. At that time you may have chosen that rate based on the employer match, or the rate that the plan automatically enrolled you, or perhaps even just the amount that you thought you could afford at the time. Odds are you haven’t changed that rate since that very first time, however — and if you didn’t make that decision based on an assessment of how much you needed to provide a financially secure retirement (see #1 above), it may not be enough.

So, take that rate and consider increasing it — by at least 1%, or more if you can.
And make a point of increasing that savings rate annually.

4. Give Your Plan an Annual Check Up

It may seem obvious, but once you have figured out how much you’ll need to live on in retirement, you need to see if you are on track to achieve that goal. So pull out those retirement plan statements, take a look at your current rate of savings, how you’re invested, the amount of the employer match, and your remaining years of saving/investing, and see how far that takes you in achieving the goal you set above.

If your current approach leaves you short of that goal, consider alternatives — saving more, for instance, or in a way that allows you to maximize your employer match. The tool you used to forecast your needs should also be able to help you see the impact that changes in your current savings strategy can make.

Then remember that things change. Whether it’s your health, your family, your income, or your place of residence, your plan needs to keep up with your needs and expectations.

While you don’t need to constantly reassess, even if there aren’t major changes it’s a good idea to check it out at least once a year — and why not on a long weekend?

Regardless, always consider seeking the help of a qualified expert advisor to help you make the decisions that will allow you to celebrate your own financial independence!

- Nevin E. Adams, JD

Saturday, June 27, 2015

6 Questions to Ask at Your Next Investment Committee Meeting

Every plan, and every investment committee, is unique — and yet, conducted properly, there are inevitably areas of commonality.

As the quarter draws to a close and preparations for these meetings get underway, here are some questions that could enhance the discussion, if not the outcome, of your next meeting.

1. Do we really need to have all these funds on the menu?

We know that participants tend to hold four or five funds on average, regardless of how many choices are on the menu. And for years we’ve known that the more choices participants have, the more difficult it is for them to make choices. (Remember the famous study about jam choices?) Sure, it can be hard to let go of a fund, especially if some participants have invested money in that option. But what tends to happen over time is a kind of fund menu inflation, where new funds get added but old ones never leave.

The funds on your menu should have a purpose. If they don’t — even if they once did — you aren’t doing anyone a favor by cluttering up the menu. And you could be leaving in place a non-performing ticking time bomb that could lead to problems later on.

2. Are there less expensive share classes available for the funds on our investment menu?

Arguably, this is the question that the defendants in Tibble v. Edison should have asked, and spared themselves a lot of time and litigation. The bottom line is, if there’s no difference in a fund choice (particularly when it’s just a different share class of the same fund) other than price, why is the more expensive one on your menu?

3. How much are our participants paying for this plan?

Odds are that most of the fees paid by the plan are investment-related, and with all the additional fee disclosures floating around, you’d like to believe that the committee already knows the answer to this question.

In my experience, however, it’s one thing to invoke a sterile “x basis points” assessment and another thing altogether to stop and do the math to put a gross dollar figure on the total cost to the plan. Or maybe even how much the average participant in the plan is paying in dollars and cents.

4. What services are we buying with those fees?

There’s been a lot of focus on fees lately — but fiduciaries are charged with ensuring that the fees and services rendered are reasonable. And I’ve never understood how you can figure out if fees are “reasonable” if you don’t know what you are paying them for.

5. Do we all need to be on this committee?

Over time, committees have a tendency to expand, sometimes based more on factors like internal organizational politics than on valuable perspectives or expertise. But human dynamics are such that the larger the group, the more diffused (and sometimes deferred) the decision-making.

As for how to trim the “fat” from the committee, sometimes all you have to do is remind committee members that plan fiduciaries have personal liability (see “5 Things Plan Sponsors Should Know”).

6. Who’s taking notes?

Finally, if you’re having a committee meeting, you’ll want to document all decisions that are made and the rationale behind each one. Prudence is process, after all — and it often starts with asking the right questions.

- Nevin E. Adams, JD

Saturday, June 20, 2015

A Preference on ‘Preferences’?

A research paper finds that introducing a Roth 401(k) option doesn’t have much impact on current plan savings rates — but what does that have to do with their preference for tax preferences?

Well, according to “Does Front-Loading Taxation Increase Savings? Evidence from Roth 401(k) Introductions,” governments could actually increase private savings by taxing savings up front, rather than in retirement. This conclusion basically suggests that taking away the current 401(k) pre-tax contribution and replacing it with a Roth assumption would not only not decrease, but it might actually increase, retirement savings, and with no additional cost to the government.

For years a key education element touted about 401(k) plan participation has been the ability of the individual to put off paying taxes on their contributions and on the earnings attributable to those contributions (and those of their employer, if any) until retirement, at which point they would ostensibly find themselves in a lower income tax bracket. Moreover, by saving on a tax-deferred basis, the theory went that you could get more bang for your buck in leveraging the taxes deferred.

A Preference for Roths

The researchers look at that scenario a little differently — gauging that paying taxes upfront on the contributions and foregoing paying taxes on the accumulated earnings amounts to a better deal. They then anticipate that participants would shift their 401(k) contributions to Roths.

To test their hypothesis, the researchers drew on administrative 401(k) plan data from 11 companies that introduced a Roth 401(k) option between 2006 and 2010 to analyze the impact of a Roth option on savings plan contributions. They found no evidence of a change in total contribution rates between employees hired after a Roth option is introduced and employees hired before. In fact, they note that if anything, contributions rise slightly when a Roth option is available.

Having found no evidence of the anticipated shift to Roths, they seek to explain it.

To do so, they turn from actual data to a survey of participants who are asked to provide a savings recommendation to a couple of fictional participants — basically to come up with a recommended savings rate for a pre-tax 401(k) option versus one that allows for both a pre-tax 401(k) deferral and a Roth 401(k) contribution. Despite what the researchers see as obvious advantages with the Roth, the contribution recommendations (in terms of a total contribution) are almost identical.

No ‘Wonder’

While considering several possible explanations for why this occurs, they settle on one that seems fairly obvious: “ignorance and/or neglect of the 401(k) tax rules.” But since the introduction of the Roth 401(k) option didn’t lead to any major shift in contribution rates, the researchers conclude that this suggests that governments may be able to increase after-tax private savings (because participants will have more savings accumulated with the Roth) while holding the present value of taxes collected roughly constant (the government gets less money, but gets it upfront, rather than waiting for the individual to retire) by making savings non-deductible up front but tax exempt in retirement, rather than vice versa.

In other words, since the addition of the Roth option didn’t lead to any significant changes in contribution behaviors, policymakers could consider shifting those current tax preferences to a post-tax savings assumption without being worried that individuals would react negatively, and perhaps save less, in response.

What If?

While acknowledging that a Roth-focused savings design could be advantageous to some, perhaps many workers (especially younger workers who may currently be paying the lowest tax rates of their working lives), I’d like to posit an alternative perspective.

What if those workers didn’t shift to Roth just because they liked the notion of putting off paying taxes — that they appreciated the logic of getting a dollar’s worth of savings for 85 cents worth of paycheck (that might, however, even account for the small uptick in contributions for the Roth — trying to make up for that “gap”)? Or that, having contributed on a pre-tax basis for some period of time, they were simply disinclined to make a change. After all, if plan sponsors simply added a Roth contribution type to the play, without changing default assumptions or matching formulas, simply presenting it as an additional option, I think it’s fair to say that, under those circumstances, most participants wouldn’t have any reaction or response to the new option. Indeed, considering normal behavioral inertia, it would be surprising if they did.

Let’s face it — they didn’t save more, they didn’t save less. They pretty much held the status quo.

So, what does this non-response of participants to the addition of a Roth option tell us about their likely response to the elimination the ability to defer paying taxes on income they haven’t received?

Well, Newton’s First Law of Motion is that objects at rest tend to stay at rest unless acted on by an external force. If you wanted to really test the reaction of participants to losing their pre-tax deferral choice — their “preference” for tax “preferences” — it seems to me that you’d need to actually take that option away from them. And then perhaps consider Newton’s Third Law of Motion: that for every action there is an equal — and opposite — reaction.

There is, it seems to me, a big difference between participants ignoring an additional choice and having an existing choice taken away. And policymakers who ignore that distinction in effecting tax law changes for retirement plans do so at their peril.

- Nevin E. Adams, JD

Saturday, June 13, 2015

5 Things You Need to Know About Retirement Readiness

Recently the Government Accountability Office (GAO) released a report titled with its conclusion: “Most Households Approaching Retirement Have Low Savings.”

The title was no surprise — though the definitions of “most” and “low” bear further understanding.

The GAO Analysis
The GAO based most of its conclusions on findings from the 2013 Survey of Consumer Finance (SCF), conducted by the Federal Reserve every three years. It is a reputable and well-regarded source of consumer information, drawn from a sampling of about 6,000 households (different ones every cycle). That said, the information contained is “self-reported,” which is to say that it tells you what the individual thinks they have (or perhaps wishes they had), but not necessarily what they actually have. More on that in a minute.

The rationale for the “most” in the headline appears to come from its focus on households age 55 and older, where the GAO noted that (only) 48% had some retirement savings, and thus one might reasonably assume that the remaining 52% had no retirement savings — and that would seem to be the case. However, 23% of that 52% said they had a defined benefit plan. Now, that assessment may be inaccurate (see above), but if they do, in fact, have a DB plan, that plus Social Security might well be sufficient. So, “most” have no savings, but about half of that “most” might not need savings. Admittedly, that distinction makes for a clumsy headline.

What about the 29% who were age 55 or older, and who had neither a DB plan nor retirement savings? Well, the median annual income of that group was (just) $18,932. It’s not hard to imagine why that income bracket might not have set aside any savings for retirement. On the other hand, that group is probably well served by Social Security. Despite that income level, more than a third (35%) of those in this group say they own a home with no debt. Assuming that is the case (see “self-reported” above), that could make a big difference in their post-retirement expenses and/or represent an additional resource they could draw on for retirement income.

The GAO conclusions notwithstanding, here are five things you need to know about retirement readiness (and retirement readiness projections):

1. Social Security matters — especially for lower-income individuals.
Social Security remains the largest component of household income in retirement. In fact, GAO noted that for households age 65-74 with no retirement savings, Social Security makes up 57% of their household income on average. In fact, a quarter of this group rely on Social Security for more than 90% of their income.

For all households age 65-74, median annual income is about $47,000, and Social Security makes up on average 44% of income for households in this age group, larger than any other income source. About 90% of all households in this age range receive some Social Security income, and the median amount they receive is approximately $19,000.

The median income for households age 75 and older is about $27,000, and the median Social Security income is approximately $17,000. In fact, when compared to younger households age 65-74, Social Security makes up a larger share of household income for retirees age 75 and older, with 62% of these households relying on Social Security for more than 50%, and more than one-in-five (22%) relying on Social Security for more than 90% of their income.

2. Average or even median savings amount in the abstract tell you very little about retirement income adequacy at an individual level.

People live in different places and have different lifestyles and lifestyle expectations. They may have resources available beyond that reported in surveys such as the SCF, and individual health circumstances can make a huge difference in the adequacy of reported income sources vis-à-vis actual retirement spending requirements.

3. Pre-retirement income (or a percentage thereof) may not be a reliable proxy for post-retirement needs.

Many of these studies — and those cited by the GAO were no exception — use a “replacement rate” standard which, while it may be a convenient metric to use to convey retirement targets to individuals, has some serious shortcomings when applied to these large-scale policy models for determining whether an individual will run short of money in retirement.

The reality is that what and how we spend money pre-retirement often has little to do with our actual financial needs post-retirement.

As EBRI’s Research Director Jack VanDerhei points out, “…simply setting a target replacement rate at retirement age and suggesting that anyone above that threshold will have a ‘successful’ retirement completely ignores longevity risk, post-retirement investment risk, and long-term care risk.”

4. Many retirement projection models assume a 50% probability of success.
Aside from the shortcomings inherent in relying on a replacement rate for these projections, if you try to factor in longevity risk (the risk of running out of money in retirement), and post-retirement investment risk, VanDerhei notes that if you use a replacement rate threshold based on average longevity and average rate of return, you will, in essence, have a savings target that will prove to be insufficient… about 50% of the time.

Of course, when it comes to their retirement security, individuals tend to prefer something much closer to 100%.

5. Those who have a retirement plan are much better off than those who don’t.
Those with no retirement savings had a median income of approximately $29,000, while those in the same age range who have some retirement savings have a median income of $76,000. Among those age 55-64 with no retirement savings, the median net worth was $21,000 (about half of these had no wage or salary income), while among those in the same age bracket with any retirement savings, their median net worth was $337,000. In that group, the median income of those with no retirement savings was $26,000; among those with some retirement savings, the median income was $88,000.

Compared to those with retirement savings, these households (those aged 55-64 with no retirement savings) have about one-third of the median income and about one-fifteenth of the median net worth, and are less likely to be covered by a DB plan.

All of which suggests that it would probably be more meaningful to examine the retirement readiness of those without access to a retirement plan separately from those who do.

- Nevin E. Adams, JD

Saturday, June 06, 2015

7 Common Retirement Plan Mistakes

The headlines are all about revenue-sharing, conflicts of interest and statutes of limitation — but the things that are likely to get plans and plan sponsors in trouble are a lot more mundane.

Here are seven that are more likely to gum up the works for your average plan sponsor.

1. Not following the terms of the plan document regarding the administration of loan provisions (maximum amounts, repayment schedules, etc.) or hardship withdrawals.

Plan documents routinely provide that hardship distributions can only be obtained for certain very specific reasons, and that participants first avail themselves of all other sources of financing before applying for hardship distributions. (These conditions often are incorporated directly from the requirements of the law.) Similarly, loans are permissible from these programs only when they comply with certain standards regarding the amount, purpose and repayment terms.

Failure to ensure that these legal requirements are met can, of course, result in a distribution that is not authorized under the terms of the plan document. And since these types of distributions are often spent quickly by participants, and thus are not readily recoverable, it can be complicated and time-consuming to set the situation right.

Oh, and don’t forget that administrative procedures for dealing with such things have been known to be, or become, inconsistent with plan documents over time.

2. Failure to follow plan document eligibility and vesting provisions.

The plan document also spells out employees’ rights to retirement benefits and the formulas for determining them based on the correct application of service and/or age requirements of the plan regarding eligibility for participation, as well as the proper application of the plan’s vesting schedule.

To comply with those requirements, you need to maintain accurate service records for all employees. If these records are incorrect, the benefits provided may be incorrect — either in excess of what is permissible or less than what was due to the participant. Note that the failure to properly follow the plan’s provisions can cause the plan to lose its qualified status.

The plan document serves as the foundation for plan operations; simply put, it is the operating manual for the plan. Sometimes, particularly if you are relying on a document that has been prepared by a third-party service provider, certain “gaps” can emerge between what the document allows and how the plan is actually administered. As a result, it is a good idea to conduct a document/process “audit” every couple of years. Don’t assume that “the way we’ve always done things” is supported by the legal document governing your plan.

3. Not keeping your plan document up to date.

As central to the plan’s operation as the plan document should be, it needs to be updated when the tax laws affecting 401(k) plans change. The IRS generally establishes a firm deadline by which plan amendments reflecting tax law changes must be adopted. If you don’t remember the last time you updated your plan, you’re probably overdue.

4. Not starting required minimum distributions (RMDs) on time.

A minimum payment must be made to the participant by the required beginning date (RBD) and for each following year. Normally, the RBD for a participant who is not a 5% owner is April 1 following the end of the calendar year in which the latter of two events occurs: either the participant reaches age 70½ or the participant retires. For 5% owners, the RBD is April 1 following the end of the calendar year in which they attain age 70½ regardless of their retirement date.

Plan sponsors often discover that required minimum payments either have not been paid on a timely basis or have not been paid at all, especially when a non-5% owner continues working after reaching age 70½. Failure to follow the minimum payment rules as written in the plan document can lead to the loss of the plan’s tax-qualified status. If participants or beneficiaries do not receive their minimum distribution on time, they — not the plan — are subject to a 50% additional tax on the underpayment.

5. Not depositing participant contributions on a timely basis.

The legal requirements for depositing contributions to the plan are perhaps the most widely misunderstood elements of plan administration. A delay in contribution deposits is also one of the most common flags that an employer is in financial trouble — and that the Labor Department is likely to investigate.

Note that the law requires that participant contributions be deposited in the plan as soon as it is reasonably possible to segregate them from the company’s assets, but no later than the 15th business day of the month following the payday. If employers can reasonably make the deposits sooner, they need to do so. Many have read the worst-case situation (the 15th business day of the month following) to be the legal requirement. It is not.

Note also that the rules about the timing of matching contributions or other employer contributions are different than those for elective deferrals.

6. Failing to obtain spousal consent.

A common plan mistake submitted for correction under the Voluntary Correction Program (VCP) is the distribution to a participant of a benefit in a form other than the required QJSA (e.g., a single lump sum) without securing proper consent from the spouse. This often happens when the sponsor’s HR accounting system incorrectly classifies a participant as not married (or when the participant was not married at one point and subsequently married or remarried).

The failure to provide proper spousal consent is an operational qualification mistake that would cause the plan to lose its tax-qualified status.

7. Paying expenses from the plan that are not eligible to be paid from plan assets.

Assuming that the plan allows it (another plan document check), the Department of Labor has divided plan expenses into two types: so-called “settlor expenses,” which must be borne by the employer; and administrative expenses, which — if they are reasonable — may be paid from plan assets. In general, settlor expenses include the cost of any services provided to establish, terminate or design the plan. These are the types of services that generally are seen as benefiting the employer, rather than the plan beneficiaries.

Administrative expenses include fees and costs associated with things like amending the plan to keep it in compliance with tax laws, conducting nondiscrimination testing, performing participant recordkeeping services or providing plan information to participants.

- Nevin E. Adams, JD

IRS Guidance Available
 
As for plans that fall short of any of the above, the IRS has resources available to help you identify these problems before they occur — and an outline of how to go about fixing them if they do occur. And should you find a plan in one of the foregoing predicaments, you might want to check out these resources from the IRS:

• If you haven’t updated your plan document.

• If you have issues with required minimum distributions.

• If you haven’t made contributions on a timely basis.

• If you didn’t get spousal consent.

Saturday, May 30, 2015

5 Investment Committee Lessons Learned From Tibble

Two things have been overlooked by many people in the days leading up to the Supreme Court’s decision in Tibble v. Edison International and the weeks thereafter: (1) most of the wrongs1 initially alleged did not survive the judgment of the district court; and (2) only a single issue — the determination as to how to apply ERISA’s statute of limitations to fund selection — was before the nation’s highest court.

While the Supreme Court rejected the notion that an initial fund review was sufficient in the absence of significant changes in circumstance to preclude the need for an ongoing assessment, the defendants in Tibble did a lot of things right that many plans don’t. Here are five:

1. They had a plan investment committee.

ERISA only requires that the named fiduciary (and there must be one of those) make decisions regarding the plan that are in the best interests of plan participants and beneficiaries, and that are the types of decisions that a prudent expert would make about such matters. ERISA does not require that you make those decisions by yourself — and, in fact, requires that if you lack the requisite expertise, you must enlist the support of those who do have it. No committee required.

2. They had regular committee meetings.

Having a committee and not having committee meetings is potentially worse than not having a committee at all. If there is a group charged with overseeing the activities of the plan and that group doesn’t convene, then one might well assume that the plan is not being properly managed, or that the plan’s activities and providers are not prudently managed and monitored, as the law requires. The Edison investment committee met quarterly to review plan investments and to review reports and recommendations from investment staff.

3. They kept minutes of committee meetings.

There is an old ERISA adage that says, “prudence is process.” However, an updated version of that adage might be “prudence is process — but only if you can prove it.” To that end, a written record of the activities of your plan committee(s) is an essential ingredient in validating not only the results, but also the thought process behind those deliberations.

More significantly, those minutes can provide committee members — both past and future — with a sense of the environment at the time decisions were made, the alternatives presented and the rationale offered for each, as well as what those decisions were. They also can be an invaluable tool in reassessing those decisions at the appropriate time and making adjustments as warranted — properly documented, of course. And they can be useful in subsequent litigation. Or not.2

4. They had an investment policy statement.

While plan advisors and consultants routinely counsel on the need for, and importance of, an investment policy statement, the reality is that the law does not require one, and thus, many plan sponsors — sometimes at direction of legal counsel — choose not to put one in place.

Of course, if the law does not specifically require a written investment policy statement (IPS) — think of it as investment guidelines for the plan — ERISA nonetheless basically anticipates that plan fiduciaries will conduct themselves as though they had one in place. And, generally speaking, you should find it easier to conduct the plan’s investment business in accordance with a set of established, prudent standards if those standards are in writing, and not crafted at a point in time when you are desperately trying to make sense of the markets. In sum, you want an IPS in place before you need an IPS in place.

Not also that, while not legally required, Labor Department auditors routinely ask for a copy of the plan’s IPS as one of their first requests. And therein lies the rationale behind the counsel of some in the legal profession to forego having a formal IPS: Because if there is one thing worse than not having an investment policy statement, it is having an investment policy statement — in writing — that is not followed.

That said, the Edison investment committee had an IPS, and by all accounts, were attentive to its terms. Terms that apparently were focused on the investment and asset allocation aspects of the fund choices, rather than on the costs and alternatives.

5. They hired an investment professional to help.

The Edison plan investment committee had access to, and relied on the services of, an investment adviser (AonHewitt’s investment consulting arm) to review/select/monitor funds. And they did make fund changes during the period in question (in fact, the district court noted that in 33 of 39 instances during the period in question, they replaced funds with others that actually decreased the revenue-sharing received by the plan).

The Tibble defendants clearly did a lot of things right in reviewing and monitoring their investment menu — so what did they do wrong?

Well, with regard to this litigation, what this $2 billion+ plan didn’t do was ask investment fund providers to waive the minimums for investment in institutional class shares, shares that were reportedly identical in every way save one (fees) to the retail class chosen. It might well be that the IPS itself and the focus of the committee didn’t consider all the factors (notably fees) that play into fund performance and suitability, and should be considered.

Following the Supreme Court’s ruling, it’s clear there is a fiduciary duty to review the funds on the retirement plan menu on an ongoing basis, though how much and how often remain to be established.
But perhaps most importantly, one lesson is now crystal clear now, if it wasn’t previously: “set it and forget it” is not an appropriate standard of review for ERISA fiduciaries.

Nevin E. Adams, JD

Footnotes

1. The district court cited three possible rationales for the retention of retail-class shares offered by witnesses for the defendant/employers — but found no evidence for them in the actions taken (or not taken).

2. The district court noted that witnesses for the defendant/employers offered three possible rationales for keeping the retail shares: If the retail share class of a certain mutual fund had significant performance history and a Morningstar rating, but the institutional share class did not; to avoid confusion among participants resulting from frequent changes in the fund; or if there were certain minimum investment requirements. But Judge Stephen V. Wilson noted that, “None of these explanations is supported by the facts in this case.”