Issue and Legislative Brief
For Plan Administrators, Participants, and Third Party Service Providers
Volume 6; Number 2 ~ March 12, 2012
Researchers/Authors: J. D. Stinson; Douglas T. Hawkins, J.D, CFP®
Copyright © All Rights Reserved 2012 - K Plan Retirement Advisors Corporation
Caution – Regarding the use of this Notice – Caution
This notice is NOT intended as specific advice for plan participants, service providers, or plan fiduciaries. It is general in nature and is a brief review of an important issue or pension law change that may directly affect a retirement benefit plan for which you have a trustee’s duty, or a third party service relationship, or in which you have a beneficial interest. Additional questions pertaining to your particular plan and its relationship to the outlined issue or change in pension law may be directed to our Research Department. This Notice is not a solicitation for the sale of any service, financial product, investment, or security.
Recent Federal Appeals Court Ruling
Plan Administrators and Trustees Have the Full Responsibility for Selecting
“Prudent Investment Selections”
A recent law suit in Federal Court provides a clear statement that those with fiduciary oversight of a 401(k) plan have the sole, ultimate responsibility for making certain that their plan’s investment options are suitable and appropriate for their employees. And, they bear the legal liability when they fail in their duty.
The case is Pfeil v. State Street Bank & Trust Co., 2012 WL 55481(6th US Cir. 2012)] The Employee Retirement Income Security Act (ERISA) Title 29 US Code; Sec. 404(c) provides that plan fiduciaries are not responsible for losses resulting from a participant’s investment decisions if the plan meets certain requirements. However, the US Department of Labor (DOL) has long taken the position that ERISA 404(c) protection is not available for the selection of investment alternatives made available to participants. In this present case the Appeals Court has unequivocally agreed with DOL’s position.
The Particulars of the Case:
The Court noted that the fiduciary had a “fundamental duty” to select and maintain only prudent investment options in the plan; likening a poor investment alternative to “one bad apple” that spoils the bunch. The fact that participants make their own investment decisions does not relieve fiduciaries of the obligation to monitor the prudence of the investments offered. In the Sixth Circuit’s view, ERISA Sec. 404(c) is intended to protect fiduciaries from decisions made by participants; it should not protect a fiduciary from decisions controlled by the fiduciary. It rejected out of hand the view that even when a fiduciary’s investment selections may have been imprudent, the fiduciary may rely on protection under Section 404(c) and arguing that the participant’s investment decisions, and/or poor management was the cause of the participant’s losses.
The Court noted in its decision a recent, finalized amendment to ERISA regulations that specifically states that ERISA Sec. 404(c) “does not serve to relieve a fiduciary from its duty to prudently select and monitor any service provided or designated investment alternative offered under the plan.”
Important Implications from this Recent Federal Court of Appeals Case:
Our firm has observed regularly two circumstances in which plan administrators and trustees are potentially violating the clear rules under ERISA and the recent appellate decision in the Pfeil case.
First, is when the plan administrator merely takes the word of their current investment provider that “everything is great, just leave the investment menu the way it is.” When the plan fiduciary follows this advice he or she may not be acting as a prudent trustee. Indeed, several other recent Federal Court cases (as examples from 2011: Tribble v Edison; George v Kraft) demonstrate that some objective, outside, expert opinion is the most intelligent, reasonable, and prudent course of action for a person that oversees a 401(k) plan. It is dangerous simply to take the word of the person who sold you the investments because you like them, or you are in the same civic club together, or your father is on the board of the bank that sold your plan its investments. These are all nice reasons to consider the vendor as your friend, but very bad reasons upon which to base your legally binding duties as decisions as the plan trustee.
Second, is when a plan administrator has entered into an agreement with a third party service provider that by contract actually (or in some practical manner under the operation of the service agreement) prohibits the plan trustees from exercising their clear duties under ERISA. This can occur when the service agreement prohibits the plan trustee from making any additional selections to the benefit menu. Language, implying more or less: “Here are the investments we offer from which your participants may choose. These are the only ones you can have. Don’t ask us if you can add any to our list; even if you’ve researched the matter and concluded that there are some better one you’d like to have as additional options for your employees.” This is the clearest and most obvious violation of ERISA, committed actually by the third party service provider who knows better in the first place; but in many instances they get by with it, because the plan trustee doesn’t know enough to object. Moreover, the trustee has violated his or her duty inasmuch as they have alienated (given up) a duty, responsibility, and a requirement that pension law says is theirs alone to undertake. The trustee cannot give up their duty under the law; not legally at least. And, they are opening themselves, their company, and the plan to law suits, complaints, and potential investigations. Sometimes, this restriction of a trustee’s duty is more subtle; as when a third party service provider tells a plan trustee, “We’d like to add these new investment options you wish to put in your plan’s menu, but our accounting platform just won’t accommodate keeping records for this type of investment or saving product.” This is hardly ever the truth. Virtually all modern TPA accounting and record keeping software and systems will accommodate virtually any type of investment arrangement. Our long experience is that the TPA who says otherwise is either too busy to deal with your legitimate request or they are protecting the investment vendor to whom they are related in business from losing the income they make from the current investments in the plan. Nobody likes their “ox to get gored.”
Practical Steps to Make Things Simple:
If you wish to be certain that your plan’s investment menu is in compliance with the rules set out in ERISA, and in several Federal Court cases, there are two practical, simple things you can do. First, have your plan reviewed by means of a Written Comparative Report. This will analyze your plan’s investment selections and compare them to accepted benchmarks and norms for prudence. This includes the specific questions related to the fees, cost, and expenses your current investments assess, and the short-, mid-, and long-term performance of your plan’s investment offerings.
Second, you should make certain your plan has an up to date “investment policy statement.” Surprisingly, the huge majority of 401(k) plans have no such document. An investment policy statement includes considerations such as the “employee demographics” – age, level of educational attainment, knowledge of investment principles and portfolio management techniques – and makes allowances (when they are clearly reasonable and prudent) for saving/investment options that are more or less passively managed, and the potential benefit of including “no-loss” accounts. Having an investment policy statement will give your plan a “base line” and a “road map” for keeping the investment line up updated through time.
End of Report
About the Researchers/Authors: J. D. Stinson is Chairman of K Plan Retirement Advisors Corporation. Douglas T. Hawkins, J.D, CFP® is Executive Vice President for Investment and Legal Counsel for this pension planning, advisory, and third party administration firm. K Plan Retirement Advisors Corporation has representatives in Amarillo, Austin, Chicago, Dallas/Ft. Worth, San Antonio, Lexington KY and Minneapolis. Mr. Stinson and Mr. Hawkins may be reached through the firm’s general delivery email server: email@example.com