Lessons Learned from Litigation #1—the Anthem Case
This is the eighth of the series about Best Practices for Plan Sponsors.
Plan sponsors should be aware of the latest trends in fiduciary litigation in order to develop practices to manage the risk of being sued and, if sued, of being liable. The recent settlement of the Anthem case is a good example of the importance of using appropriate share classes and of other practices in selecting investments and monitoring service providers. This article discusses the complaint, the settlement and risk management for plan sponsors and their fiduciary committees.
To start at the beginning, Anthem and its fiduciary plan committee were sued based on allegations that they selected overly expensive share classes (considering what was available to a multi-billion dollar plan); that they overpaid the recordkeeper; and that they offered a money market fund rather than a stable value fund.
Continue reading Best Practices for Plan Sponsors #8
Plan Success by the Numbers (Part 1)
This is the seventh of the series about Best Practices for Plan Sponsors.
Most companies have budgets for their business operations . . . and then regularly compare budget-to-actual. In other words, they compare their actual expenses to the budgeted amounts to see if they are on track to accomplish their financial goals. That’s pretty standard, and there is nothing remarkable about it. But, why don’t plan sponsors and fiduciaries, for example, plan committees, use that same approach for their 401(k) plans? I have a theory about that. But, before I explain my theory, let me say that I believe that plan committees should have budgets, or goals, and should measure their success in reaching those goals.
My theory is that 401(k) plans don’t set goals for plan success because 401(k) plans were originally viewed as the “employees’ plan.” The idea was that employees could do what they wanted to do, since the plan was a supplemental savings plan. That approach made sense when pension plans were more popular. However, now that 401(k) plans have become the primary retirement plan for most employers and employees, it seems fairly obvious that the burden of success of 401(k) plans needs to fall primarily on employers and fiduciaries.
Continue reading Best Practices for Plan Sponsors #7
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?
Continue reading Best Practices for Plan Sponsors #6
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.
Continue reading Best Practices for Plan Sponsors #5
What is the Baseline for A Committee to Act in the Best Interest of its Participants? (Part 3)
This is the fourth of the series about Best Practices for Plan Sponsors.
In my last two posts (Best Practices for Plan Sponsors #2 and Best Practices for Plan Sponsors #3), I discuss the NYU case and the “bad” and “good” behavior of committee members. I concluded my last post with the point that process matters. Of course, it was unspoken that I was referring to a good process. This article discusses the fundamentals of a good process and the lessons learned from the NYU decision.
Continue reading Best Practices for Plan Sponsors #4
What is the Baseline for A Committee to Act in the Best Interest of Its Participants? (Part 2)
This is the third of the series about Best Practices for Plan Sponsors.
This is my second article about the case of Sacerdote v. New York University. As I discussed in my last post, the Court’s opinion pointed out the deficiencies in the understandings and conduct of some committee members. However, the Court ultimately ruled in favor of the plan fiduciaries and against the plaintiffs. Why was that?
Continue reading Best Practices for Plan Sponsors #3
What is the Baseline for A Committee to Act in the Best Interest of Its Participants? (Part 1)
This is the second of the series about Best Practices for Plan Sponsors.
The recent decision in the case of Sacerdote v. New York University is a classic story of the good and bad of plan committees. Let’s start with the bad.
Five current and former committee members testified at the trial. But not all of the testimony was helpful.
Continue reading Best Practices for Plan Sponsors #2
Projection of Retirement Income
This is the first of the series about Best Practices for Plan Sponsors.
“Best Practice” is above and beyond the legal requirements. Best Practices are not mandated; they are elected.
While the most obvious Best Practices are automatic enrollment and automatic deferral increases, I want to start with the projection of retirement income for participants. That’s partially because it is in a current legislative proposal—in the Retirement Enhancement and Savings Act (RESA), and also because, in my opinion, it doesn’t receive the attention that it deserves.
Continue reading Best Practices for Plan Sponsors #1