Friday, July 24, 2009

Law Suits - Coming Down Market

We invariably have discussions surrounding Discretionary Trustee Services, Fiduciary Services, Fiduciary Responsibility and Liability that lead to the following inevitable question. What is the real risk of all of this stuff? The question is clearly pointed at challenging whether or not the risks are real risks or simply overzealous rule following. This is especially important as the spate of law suits that are publicized in this area are always with very large plans (Deere, Ford, etc.) and their providers, again mostly very large companies. That contrasts to Unified Trust’s typical market, where we partner with Advisors, which we would define at the Under $100m space. We believe that the risk question misses the point. Liability relief is important and useful to a Plan Sponsor who has concerns in this area, however, the point is that the rules under ERISA are written the way they are because they create a path to follow that mandates ‘Best Practices’. If followed absolutely, they should generally lead plans to be more successful at providing adequate benefits to the participants in a fair way than when they aren’t followed. Obviously, we are a true proponent of ‘best in process, best in outcomes’ based approach to Retirement Plan Management. This applies to both Defined Contribution and Defined Benefit Plans.

That said, it should come as no surprise to anyone reading this that the quantity of law suits in the Retirement Plan industry has increased dramatically since the end of 2007. No one worries when the market is going up if their robust returns are slightly lower due to excessive fees, but in a down market even the slightest hint of excessive fees can bring participants and Plan Sponsor’s blood to boil. We have always stated that it would only be a matter of time before we were hearing about fee-driven law suits in the small plan space and that engaging in ‘Best Practices’ is a good way to avoid risk regardless of market cycles or client size.

In the latest edition of Investment News (July 20, 2009), there is an article that discusses a plan of approximately $2m in assets that is suing its Investment Advisor, Custodian and Recordkeeper. To read the full article, click here.

Interesting to us is that the suit is regarding fee disclosure, revenue sharing and hidden fees. We have written on this subject before in published papers and prior emails. I can forward them to anyone interested. The bottom line is that a fee-based environment (as opposed to commission based) where all fees are known, accounted for and disclosed is the only environment appropriate for Retirement Plan Sponsors. That’s appropriate whether using the Suitability Standard or the Fiduciary Standard.

The following are articles by Unified Trust that discuss fee disclosure, what’s broken and how it works and how it should work.

Ethics of 401(k) Revenue Sharing and Disclosure — Full Article
Revenue Sharing For Qualified Plans — Full Article