Category Archives: DOL Activity

Open Questions on Open MEPs

One of the shiny new coins of the 401(k) realm is “Open MEPs.” It’s anticipated that Congress will pass legislation this year that permits Open MEPs. Legislation is needed because of DOL guidance that, in essence, prohibits MEPs that are “open” to all employers. But, what is an Open Multiple Employer Plan? What other kinds of MEPs are there? How do the people that set up MEPs get paid? Here is an article that I, and my partners, Bruce Ashton and Josh Waldbeser, wrote on that subject for ASPPA.
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Best Practices for Plan Sponsors #6

Why Wait Until After You are Sued?

This is the sixth of the series about Best Practices for Plan Sponsors.

I am surprised that, after all of the fiduciary litigation against 401(k) plan sponsors, many plan sponsors and their committees have not taken the basic steps to minimize the risk of being sued, or if sued, of being liable. In most of the settled cases, the plaintiffs’ class action attorneys require that certain conditions—or “best practices”—be adopted by the plan fiduciaries. And, in settlement after settlement, those conditions are, by and large, the same. That raises the obvious question, why haven’t plan committees reviewed these cases and instituted the practices required by the settlement agreements?

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Best Interest Standard of Care for Advisors #4

What Does “Best Interest” Mean? (Part 1)

I am writing two series of articles that together are called “The Bests.” One is about Best Practices for plan sponsors, while the other is about the Best Interest Standard of Care for advisors. Each series is numbered separately to make it easier to identify the subject that is most relevant to you.

This is the fourth of the series about the Best Interest Standard of Care.

“Best Interest” has become part of the American lexicon . . . as an aspirational goal or a demanding standard—depending on the point of view. But, what does best interest mean? It may mean different things to different people . . . and perhaps even to different regulators. However, I believe that most people would agree on the definition in this article.

As I read the guidance issued by the Department of Labor (DOL), the Securities and Exchange Commission (SEC), and New York State, there are actually two different best interests. The first is a standard of care and the second is a duty of loyalty. Of the two, the duty of loyalty is the easiest to define because, in all of the guidance it boils down to a requirement that an advisor cannot put his interest ahead of the investor’s.

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Best Practices for Plan Sponsors #5

Fiduciary Training: The Need for Basics

This is the fifth of the series about Best Practices for Plan Sponsors.

In three earlier posts—Best Practices for Plan Sponsors #2, #3, and #4—about the Sacerdote v. New York University decision, I discussed the good and the bad of the NYU plan committee and made several suggestions about best practices for improving committee performance. This article focuses on one of those suggestions—fiduciary education for committee members.

As a starting point, 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 my analysis of court decisions on fiduciary responsibility, I am worried that fiduciaries may not be adequately educated about their basic responsibilities and particularly their administrative oversight duties. If you look at decisions, such as the NYU case, the issues are basic. For example, one of the defendants did not know if he was still a member of the committee. Another committee member didn’t believe that she was a fiduciary or that she had legal responsibility for the decisions made by the committee. Instead, she thought her role was ministerial, in terms of setting up the meetings and distributing information.

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Best Interest Standard of Care for Advisors #3

SEC Best Interests . . . When? And What About the DOL

I am writing two series of articles that together are called “The Bests.” One is about Best Practices for plan sponsors, while the other is about the Best Interest Standard of Care for advisors. Each series is numbered separately to make it easier to identify the subject that is most relevant to you.

This is the third of the series about the Best Interest Standard of Care.

The Regulatory Agendas for the SEC and DOL were recently issued. Both have plans for guidance by September of 2019, but the anticipated timing of the guidance has, by and large, been misinterpreted. To understand what I mean, read on.

The SEC’s Agenda said that Final Action on the Regulation Best Interest proposal for broker-dealers and the Interpretation of Standard of Conduct for investment advisers would be “09/00/2019.”

Similarly, the Department of Labor Agenda said that there would be a final rule on the “Fiduciary Rule and Prohibited Transaction Exemptions” with the date of “09/00/2019.”

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Best Interest Standard of Care for Advisors #2

I am writing two series of articles that together are called “The Bests.” One is about Best Practices for plan sponsors, while the other is about the Best Interest Standard of Care for advisors. Each series is numbered separately to make it easier to identify the subject that is most relevant to you.

This is the second of the series about the Best Interest Standard of Care.

In my last post, I discuss the remarkable similarities among the SEC’s proposed Regulation Best Interest, the SEC’s proposed Interpretation for investment advisors, the DOL’s Best Interest standard of care (which is a combination of ERISA’s prudent man rule and duty of loyalty), and the New York State Best Interest standard for sales of annuities and insurance products. All of those rules require that advisors act with care, skill, prudence and diligence, and that they place the interests of the investor ahead of their own.

In the first post, I conclude that the Best Interest standard requires the following:

  • A careful and skillful professional process measured by the objective standard of a knowledgeable and experienced advisor; and
  • A duty of loyalty to the investor.

This post discusses the type of process that would satisfy the Best Interest standard for all of those rules. However, since the process is not well defined (other than in guidance under ERISA), some of the suggestions in the post may, in fact, be Best Practices. Let me define that term. “Best Practices” means that the advisor is doing more than is required by the law. While Best Interest may be required, Best Practices is not; it is voluntary. As a result, Best Practices are for advisors who desire to excel, while Best Interest is for advisors who want to be compliant.

In my view, a combination of Best Interests and Best Practices suggests that advisors should use the following process:

  • Gather the information that is relevant to providing Best Interest advice. (“Relevant” means the information that is necessary to develop a recommendation that is appropriate for the investor. A synonym in this circumstance would be “material” information. If information about the needs and circumstances of the investor could affect the recommendation, then it is material and relevant).
  • Consider the types of investments (and insurance products) and strategies that are appropriate for the investor based on the analysis of the investor’s profile (that is, based on analysis of the relevant information). In effect, this step is the formulation of a strategy for the investor based on the products and services available to the advisor. While there may be some flexibility if the advisor only has access to limited types of products, that flexibility is limited, in the sense that any recommendation will still be measured by the Best Interest standard of care.
  • Select the particular investments, insurance products and services that will be recommended to the investor, that is, that will populate and implement the investment strategy. As the SEC said in its proposed guidance, while cost and compensation are not the only factors to be considered, their significance is enhanced under the SEC proposals. In other words, they are major considerations. Another obvious important consideration is the quality of the product. That includes the “management” of the product, for example, the investment advisor for a mutual fund, the investment manager for an investment service, and the insurance company issuing an annuity contract or life insurance policy.

I suspect that, if an advisor gets into trouble because of his or her recommendations, it will be the result of an inappropriate (and perhaps unsuitable) strategy, excessive costs and compensation, or inferior quality of the “manager” of the product.

That begs the question of, how does an advisor demonstrate a Best Interest process? Other than for the DOL and ERISA plans, there is not a requirement to maintain documentation of the process. However, it probably goes without saying that a well-documented process is good risk management (and, for that matter, that a well-documented process is likely to be a prudent process).

In the next year or two, the SEC may enhance its guidance to further define the processes that are needed to satisfy its Best Interest standard. More certainly, though, the SEC, FINRA, DOL and New York State regulators will, in due course—perhaps over the next three years or so—begin their enforcement activities. Unfortunately, it’s possible that we may see “regulation by enforcement,” meaning that the holes in the guidance are filled in by the enforcers, rather than the regulators.

To automatically receive these articles in your in box, you can sign up on my blog at http://fredreish.com/insight/. Just enter your name and email address under the “sign up for our e-newsletter” option, and click on the button to subscribe.

The views expressed in this article are the views of Fred Reish, and do not necessarily reflect the views of Drinker Biddle & Reath.

 

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Hearing on Retirement Income by the ERISA Advisory Council

I recently testified before the Department of Labor’s ERISA Advisory Council on the subject of lifetime income. More specifically, it was about lifetime income products and services for retirees provided through defined contribution plans. Here are my opening comments:

Thank you for this opportunity to testify.

I am Fred Reish, a partner in the law firm of Drinker, Biddle and Reath. However, this testimony is not on behalf of the firm, but instead represents the views of my partner, Bruce Ashton, and myself.

As a starting point, it is helpful to have a foundation for development of recommendations. For example, I suggest:

  • The conversation about defined contribution plans needs to increasingly and emphatically include retirement income.
  • Plan sponsors and participants need good quality, reasonably priced retirement income products and services.
  • Plan sponsors need clear, objective and implementable guidance on how to do that.
  • Participants need information, education and advice on how to best use those products and services.
  • Both plan sponsors and participants will benefit from the use of knowledgeable fiduciary retirement income consultants.
  • Any guidance should be agnostic as to retirement income products and services. Participants may need a combination of products and services to properly address their needs.

Here are more detailed thoughts that could inform decisions for going forward:

1.       The safe harbor regulation for annuities in defined contribution plans does not work and will not work. Plan sponsors, by and large, are not in a position to determine if those criteria are satisfied.

2.       If a new safe harbor regulation is developed, it needs to be objective and obvious, in the nature of a checklist of items to obtain, but not to be reviewed at the level of an insurance expert.

3.       Insurance consultants are expensive and they are few-and-far-between. But, if used as independent fiduciaries at a platform level, similar to 3(21) and 3(38) fiduciary investment advisers on 401(k) recordkeeping platforms, the cost can be borne by insurance companies or spread over thousands of plans and millions of participants.

4.       Plan sponsors are more likely to provide services to participants if they can do so in a context of providing information and education, and plan sponsors are more likely to use products and services approved by fiduciary advisors and consultants.

5.       In that vein, plan sponsors are more likely to embrace concepts if the service providers are legally responsible. As a result, plan sponsors should be able to rely on their providers (for example, recordkeepers) for that purpose, so long as they do not have a reason to doubt the competency of the providers. In the real world–and especially for small- and mid-sized plans, that is what is already happening–and the rules should parallel the real world in this case.

6.       Participants need help making decisions about retirement income products and services. They are not, by and large, educated or experienced in the analytical processes for determining which products or services to select for 20 or 30 years into the future or the amounts to be allocated among such products and services. This is analogous to the fiduciary services that participants receive for investing their accounts, for example, target date funds and managed accounts.

7.       It may not be realistic to expect participants to make lifelong decisions in the period of days immediately before they take retirement distributions. If retirement income products or services are accumulated during participation in a plan, they are more likely to be used in retirement. That is true of insured products and securities products and services.

8.       Target date funds are popular with both plan sponsors and participants. They are likely to be a popular way to provide non-guaranteed retirement investment income or to accumulate guaranteed retirement income products. As a result, guidance should be issued to make clear that is permissible. Defaults work and should be considered, particularly where a participant’s account has been invested in a manner that incorporates retirement income services and products during the accumulation phase. The Department should recognize the power of its guidance–even soft guidance, for example, look at the favorable impact Interpretive Bulletin 96-1 had on investment education.

9.       It is not possible to develop perfect answers to these complex problems. However, we should not let the perfect be the enemy of the good. Good answers will do the job.

10.     Products and services will be developed in the future that are not even imagined today. Any guidance should be flexible to allow future developments.

With those thoughts in mind, I recommend the following:

1.       The Department of Labor should discuss 401(k) and other defined contribution plan vehicles for retirement income. Words matter. Retirement income projections are not just projections—they are perspective. I cannot think of a better way to change the perspective and, thereby, change the conversation.

2.       The Department should affirmatively state that insurance and annuity products are, in concept, prudent for defined contribution plans and should simplify its annuity safe harbor regulation. We support the legislative proposals on this matter, but suggest that additional objective safeguards be added. In addition, clarify the QDIA safe harbor to include annuities in each of the three QDIA options, that is, target date funds, balanced funds and managed accounts.

3.       The Department should issue guidance that the concepts in the SunAmerica Advisory Opinion and the Pension Protection Act advice exemptions apply to retirement income products and services–at both the plan sponsor level and the participant level, so that plan sponsors can receive advice on the prudence of retirement income insurance companies and guarantees, and so that participants can receive advice on how to use those guaranteed products and investment products and services. It should be clear that the independent fiduciary is the responsible fiduciary, and not the plan sponsor. For example, DOL Field Assistance Bulletin 2007-01 applies a similar approach to participant investment advice.

4.       The Department should issue guidance that platforms of retirement income products and services are analogous to brokerage windows, and therefore the platform, but not the products and services, needs to be vetted by plan sponsors as fiduciaries.

5.       The Department should issue new guidance focusing on retirement income similar to Interpretive Bulletin 96-1 to the effect that education can be provided about retirement income products and services in the plan, and it would not be considered fiduciary advice.

To automatically receive these articles in your in box, you can sign up on my blog at http://fredreish.com/insight/. Just enter your name and email address under the “sign up for our e-newsletter” option, and click on the button to subscribe.

The views expressed in this article are the views of Fred Reish, and do not necessarily reflect the views of Drinker Biddle & Reath.

 

 

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Moving from Angles to Bests

Now that I have completed 100 articles about interesting Angles on birth –and death–of the DOL’s Fiduciary Rule, and the birth of an SEC best interest standard for broker-dealers and RIAs, I am going to start on a new series. The new series, rather than being titled “Angles,” will be called “The Bests.”

So, from now on, my articles—maybe the next 100—will focus on two “bests”—the SEC’s best interest standard and best practices for advisors and plan sponsors.

I figure that the SEC’s best interest rules will be developed and implemented over the next year or two, giving me a wealth of materials for new articles. But, I don’t want to be limited to that. I think that it’s important to talk about best practices for retirement plans and retiree investing and withdrawing, with a focus on helping participants to and through retirement—accumulation and decumulation.

With this introduction of the new series, the articles will begin after the Labor Day break.

Enjoy the dog days of summer . . . family vacations, baseball games and barbeques!

Fred Reish

To automatically receive these articles in your in box, you can sign up on my blog at http://fredreish.com/insight/. Just enter your name and email address under the “sign up for our e-newsletter” option, and click on the button to subscribe.

The views expressed in this article are the views of Fred Reish, and do not necessarily reflect the views of Drinker Biddle & Reath.

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Interesting Angles on the DOL’s Fiduciary Rule #100

Investment Advisers and the SEC’s Interpretation of Their Duties: Part II

This is my 100th article about interesting observations—or “angles”—concerning the Department of Labor’s Fiduciary Rule and the SEC’s “best interest” proposals.

Part I of this post discussed the application of the SEC’s best interest standard to recommendations to participants to take distributions and rollover to IRAs. It also discussed the apparent requirement for a thoughtful and professional process to develop the recommendation. However, it reserved for this post, Part II, the factors to be considered in that process.

The RIA Interpretation lists a number of factors to consider in the best interest process. However, most of them apply to investment recommendations, rather than advice about distributions. But a few are helpful. For example, the costs of investments and services and consideration of the investor profile are relevant factors.

Under Reg BI, though, the SEC is a little more helpful. For example, Reg BI says that an advisor should engage in a careful, skillful, diligent and prudent process. Reg BI also refers to FINRA Regulatory Notice 13-45 in several places. That Regulatory Notice requires that the information about the important factors (see below) be gathered and considered in light of the investor profile. While the Regulatory Notice says that the rollover recommendation must be suitable in light of these factors, the RIA Interpretation and Reg BI add that the recommendation must be in the “best interest” of the participant and that the interests of advisors and their firms cannot supersede those of the participant.

Although vacated by the 5th Circuit, the DOL’s Best interest Contract Exemption (BICE) described a prudent process, using language similar to the SEC’s proposed Reg BI . . . care, skill, prudence and diligence. In addition, the DOL’s BICE also said that information needed to be gathered about the relevant factors and those factors should be evaluated in light of the needs and circumstances of the participant. In other words, the SEC’s proposals and the DOL’s vacated rule are remarkably similar on rollover recommendations.

In sum, I think that it’s fair to say that, in order for the SEC’s best interest standard to be satisfied, an advisor (of a broker-dealer or an RIA) must engage in a process where the advisor gathers, and carefully and professionally considers, the relevant information. That process would need to satisfy the best interest and loyalty standards.

But, what are the relevant factors? The leading guidance on that question is found in FINRA Regulatory Notice 13-45 and the DOL’s vacated BICE (including a FAQ issued by the DOL). Boiled down to the essence, those materials say that advisors must consider, at the least, the investments, services and expenses in the plan; the investments, services and expenses for the proposed rollover IRA; and information about the participant (for example, financial objectives, needs, and risk tolerance). It would also be permissible to consider other factors, such as participant preferences, outside assets, other family investments, and so on.

While BICE has been vacated, it likely reflects the DOL’s current thinking about a prudent process and, as a result, could be applied by the DOL to situations where fiduciary advisors make recommendations of distributions and rollovers. (See DOL Advisory Opinion 2005-23A.) Also, since the DOL has the most experience with plan distributions, FINRA and the SEC may defer to the DOL’s thinking in this area. And, while the FINRA Regulatory Notice only covers recommendations by broker-dealers and their advisors, I doubt that the standard for RIAs would be lower than the standard for broker-dealers.

As a result, investment advisers should develop processes for gathering and considering information about the investments (and fees, costs and services) available to the participant in the plan, and compare them to similar information for a proposed IRA, in light of the investment profile of the participant.

And, keep in mind, as I mentioned in Part I of this article, the SEC’s Interpretation RIA reflects current SEC thinking. This is not something to be put off for the future.

NOTE: This article discusses rollover recommendations to participants in participant directed plans. The issues for “pooled” plans are different. In particular, the analysis for defined benefit plans can be more complex.

NOTE: While the DOL’s vacated Fiduciary Rule would have applied to private sector, ERISA-governed retirement plans, the SEC’s guidance applies to participants in all plans, including government plans.

To automatically receive these articles in your in box, you can sign up on my blog at http://fredreish.com/insight/. Just enter your name and email address under the “sign up for our e-newsletter” option, and click on the button to subscribe.

The views expressed in this article are the views of Fred Reish, and do not necessarily reflect the views of Drinker Biddle & Reath.

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Interesting Angles on the DOL’s Fiduciary Rule #99

Investment Advisers and the SEC’s Interpretation of Their Duties: Part I

This is my 99th article about interesting observations concerning the Department of Labor’s (DOL) Fiduciary Rule and the SEC’s “best interest” proposals.

The SEC labeled its interpretation of the standard of care for RIAs (the “RIA Interpretation”) as a proposal. However, in that proposal, the SEC explained that the RIA Interpretation was based on the SEC’s current understanding of the duties of investment advisers. More specifically, the SEC described the RIA Interpretation as reaffirming and clarifying the RIA fiduciary rule: “. . . we believe it would be appropriate and beneficial to address in one release and reaffirm—and in some cases clarify—certain aspects of the fiduciary duty that an investment adviser owes to its clients under section 206 of the Advisers Act.”

As a result, investment advisers should treat the RIA Interpretation as governing guidance and should make sure that they are complying with the duties explained in the RIA Interpretation.

This article discusses some of those duties and compares them to the DOL’s vacated fiduciary rule and the SEC’s proposed Regulation Best Interest (“Reg BI”) for broker-dealers.

The RIA Interpretation says that all advice to all clients is fiduciary advice and, therefore, subject to the RIA duty of care and duty of loyalty. (There are several duties of care, but this article focuses on the best interest standard of care. There is also a duty of loyalty, which, for example, covers the disclosure requirements for RIAs.) To juxtapose the RIA duties with Reg BI, broker-dealers also have a best interest standard of care, but only for recommendations to “retail customers” about securities or strategies involving securities. Other recommendations by broker-dealers are not covered by the best interest standard.

With regard to the DOL, when the 5th Circuit Court of Appeals vacated the Fiduciary Rule, the old fiduciary regulation was revived. That regulation imposes a 5-part test for fiduciary status. (Note that the 5-part test only applies to non-discretionary investment advice. Whenever an advisor has discretion over assets in a plan, a participant’s accounts or an IRA, the advisor is automatically a fiduciary under a separate part of the regulation. And the DOL’s definition of discretion is very broad.) One of the 5 “parts” is that the advice must be given on a “regular basis,” meaning that a one-time recommendation would not cause a person to be a fiduciary. As a practical matter, the 5-part test is usually satisfied by the services typically offered by investment advisers to plans, participants’ accounts and IRAs. In addition, it is a functional test. As a result, where representatives of broker-dealers regularly make recommendations to those qualified accounts (and satisfy the other 4 parts), representatives and broker-dealers will be fiduciaries, even if they do not think they are.

To understand how those rules operate, let’s look at several scenarios involving recommendations of plan distributions and rollovers.

Under the DOL’s 5-part test, an advisor who recommends a distribution and rollover would not ordinarily be a fiduciary. However, there is an exception. Where the advisor is a fiduciary to a plan, and makes a recommendation to a participant in that plan to take a distribution and roll over to an IRA with the advisor, the DOL will consider the advisor (either a broker-dealer or RIA) to be a fiduciary for that purpose. See DOL Advisory Opinion 2005-23A.

The DOL’s position applies to all types of ERISA-governed plans, including 401(k)s, 403(b)s, cash balance plans, profit sharing plans and pension plans. (While most private sector plans are covered by ERISA, government plans are not. In addition, some private sector plans are not, for example, one-person plans and most church plans.)

With regard to RIAs, the SEC said, in its RIA Interpretation, that recommendations of plan distributions and rollovers would be fiduciary advice, subject to the best interest standard of care. Since the SEC RIA Interpretation applies to all recommendations to all clients, an investment adviser would be held to the best interest standard of care for distribution and rollover recommendations to all plans (even if not ERISA covered), including 401(k)s, 403(b)s, cash balance plans, pension plans and profit sharing plans.

Under the proposed Reg BI, a broker-dealer’s rollover recommendation to a participant in a participant-directed plan would also be subject to the best interest standard of care. That is because the recommendation to take a distribution necessarily includes a recommendation to liquidate the investments inside the participant’s account. In other words, it is a securities recommendation. However, it appears to me that a recommendation to take a distribution from a cash balance or pension plan would not involve a securities recommendation and, therefore, would not be subject to the best interest standard. Similarly, a recommendation to take a distribution from a “pooled” defined contribution plan, such as a profit sharing plan, may not involve a securities recommendation, since the participant does not have any authority to determine which investments are sold to finance the distribution.

In both cases—RIAs and broker-dealers, the recommendation about how to invest the money in the rollover IRA would be covered by the SEC’s best interest standard. (However, while RIAs would have an ongoing duty to monitor the account, broker-dealers do not. The duty to monitor could be modified by the agreement. For example, RIAs can contract to not monitor, while broker-dealers can agree to monitor.)

Now that we know which rollover recommendations are subject to the best interest standard, there are two remaining questions. The first is, what is the best interest standard? The second is, what does the best interest standard require for distribution recommendations?

Those two questions will be answered in Part II of this Angles.

The views expressed in this article are the views of Fred Reish, and do not necessarily reflect the views of Drinker Biddle & Reath.

 

 

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