Adds Fiduciary Liability to Thousands of Advisors
The Asset Protection Society is all about protecting clients from “all” liabilities (global asset protection) and to help advisors protect themselves when giving advice to clients (an interesting dynamic).
One of the most overlooked and often misunderstood type of liability is that of a 401(k)/Profit Sharing Plan Fiduciary. In small companies this is typically the business owner and in larger plans it could be an investment manager.
When the new Supreme Court Ruling came out, we thought it was imperative that we make everyone aware of it and the increased liability it will bring to many.
New Supreme Court Ruling
Most readers should know that 401(k)/profit sharing plan (PSP) fiduciaries have “personal” liability as the plan fiduciary.
The DOL Requires Pension Plan Sponsors to:
“…Prudently select & monitor plan investment options…” [DOL 2550.404c – 1 (f)(8
The above duty is for pension plans that allow for self-directed investments by the employees (self-directed meaning your plan has multiple investment options like mutual funds, and the employees pick their own funds).
DOL duty is impossible to comply with
In my opinion, it is impossible for a plan sponsor to comply with the DOL’s requirement to prudently select and monitor the investment options given to the employees in the plan. In order to technically comply, every fiduciary would basically be required to become stockbrokers who watch the market all day so they can say “in good faith” that they did monitor and select prudent investments.
The duty by the DOL described above is also non-delegable. A non-delegable duty is a duty which cannot be delegated to a third party. That means you cannot pay someone a fee to take the liability for you. Many pension providers say they relieve this burden, but that is not technically accurate.
The First Union case
The First Union case comes to us from a bank in Florida. The employees of the bank sued the bank (and the individual trustees) for violating their fiduciary duties as they pertained to the bank’s pension plan. To make a long story short, the investments did not do nearly as well as the prudent investor should have over a period of time; and, the suit settled out of court for $26,000,000, of which the attorneys received $8,000,000.
The Court’s Decision
On February 20, 2008 the Supreme Court unanimously struck down a 4th Circuit ruling from 2006 which stated that, 401(k) plan participants may sue a fiduciary plan administrator to recover losses resulting from a plan administrator’s breach of fiduciary duty; however, the 4th Circuit’s ruling applied only to breaches that harm the planparticipants as a whole.
The Supreme Court now states, that defined contribution (401(k)/profit sharing plan “fiduciaries” can be sued for a breach of fiduciary duty that affects the plan participants as a whole or individually.
This is a major headache for the plan fiduciaries as one employee may do poorly in such a plan and sue whereas before, the entire plan as a whole needed to have sub-standard (sub-prudent man) investment returns in order to sue the plan fiduciary for breach of his/her standard of care.
This holding is not intended to give free reign to sue the fiduciary of an ERISA plan just because someone does not like their decisions or because the investments made available to employees are not performing as well as they think they should. Someone interested in suing must still show that the plan’s Fiduciary breached the “prudent investor” rule. However, it will be easier to move a case forward as the burden of proving that all the participants as a whole were harmed has been eliminated.
The Court expanded upon ERISA’s original protections and now offers plan participants greater protection. If the drafters were seeking to protect the plan they were obviously concerned with protection of participants’ investments as without those investments there would be no plan. The Court’s allowance for individual suits under ERISA is a logical interpretation.
Ways to Mitigate a Fiduciary’s Liability
The main way to mitigate a fiduciary’s liability is to have what’s known as an Investment Policy Statement (IPS). The IPS gives formal and written guidelines so that the prudent investor rule can be complied with. While we do not like to make many “fininte” statements, we believe EVERY defined contribution plan should have an IPS; then of course the fiduciary needs to follow the guidelines of the IPS.
One other way to mitigate risk: One other way to mitigate risk is to hire and pay a professional “Fiduciary Service” to review the investment mix every year to make sure that the mix offered will meet the prudent investor standard. The cost of such services as a protective measure to review the plan each year will vary in cost ($3,000-$5,000 a year).
If you are interested in such services for your plan or for a client’s plan, please e-mail me at Email Us and I will forward you the name of the company approved for use by the APS.