Willing Fiduciary

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Questioning 401k Lawsuits Based on Investment Outcomes


Investment results are outcomes. No one can predict the excess return relative to a benchmark (Alpha) that is usually associated with active investment management. Then it should come as no surprise that no one can predict the market as a whole (beta). Choosing investments is a subjective endeavor.

So why are so many legal actions and allegations against Employer Retirement Plans Sponsored Plans based on subjective endeavors with unknown outcomes? Even via an appeal, the judge will allow the journey to the door but, without the keys, will never allow the door to be opened.

Loyalty and prudence is demonstrated in the behavior and methodology of the fiduciary and judges have no compunction in stating this:

“However, a plan fiduciary’s actions should “not be judged ‘from the vantage point of hindsight.'” Chao v. Merino, 452 F.3d 174 , 182 (2d Cir. 2006) (quoting Katsaros v. Cody, 744 F.2d 270 , 279 (2d Cir. 1084). Cf. Pension Benefit, 712 F.3d at 716 (noting that the “prudent person” standard “focus[es] on a fiduciary’s conduct in arriving at an investment decision, not on its results, and ask[s] whether a fiduciary employed the appropriate methods to investigate and determine the merits of a particular investment”) (quoting In re Unisys Sav. Plan Litig., 74 F.3d 420 , 434 (3rd Cir. 1996). “[S]o long as the ‘prudent person’ standard is met, ERISA does not impose a ‘duty to take any particular course of action if another approach seems preferable.” Chao, 452 F.3d at 182 . “A court should not find that a fiduciary acted imprudently in violation of ERISA 404(a)(1)(B) [*7] merely because, with the benefit of hindsight, a different decision might have turned out better.” Osberg, 138 F. Supp. 3d at 552 . In Leber v. CitiGroup 401(k) Plan Investment Committee,129 F. Supp. 3d 4 , 14 (S.D.N.Y. 2015), the court recognized thatSection 404 of ERISA “focuses on a fiduciary’s conduct in arriving at an investment decision, not on its results, and asks whether a fiduciary employed the appropriate methods to investigate and determine the merits of a particular investment.” (https://www.bloomberglaw.com/public/desktop/document/Troudt_v_Oracle_Corp_No_116cv00175REBCBS_2017_BL_47916_D_Colo_Feb?1490618456)

Hidden in the message is a description of a fiduciary acting in compliance and the skillset required to do so:

“..a fiduciary’s compliance with the prudent-man standard requires that the fiduciary give “appropriate consideration” to whether an investment “is reasonably designed, as part of the portfolio . . . to further the purposes of the plan, taking into consideration the risk of loss and the opportunity for gain (or other return) associated with the investment.” Accordingly, the prudence of each investment is not assessed in isolation but, rather, as the investment relates to the portfolio as a whole.”

The judge is trying to tell everyone how the coin should be forged but no one seems to be listening.

Heads-The ability to provide visible evidence of a methodology that demonstrates portfolio management skills that improves the likelihood of the participants reaching their retirement objectives.

Tails-The lack of visible methodology that demonstrates portfolio management skills that improves the likelihood of the participants reaching their retirement objectives

The legal industry is failing to make Employer Sponsors of Retirement Plans accountable for “Heads” because they lack the Subject Matter Expertise to prove that Employer Sponsors of Retirement Plans have been using coins with only “Tails.”

In most cases, Employer Sponsors of Retirement Plans don’t even know that their coins don’t have a “Heads.”

Some judges are trying to tell both that they are flipping the wrong coin.

The Fiduciary Spectator

“Do you find out how the pitcher is throwing by asking the fan in the stands or the batter who was in the batter’s box.”

Attorney Firms continue to be spectators in a sport that requires experience to win. It is clear by the allegations:

“…. accuses them of self-dealing to promote the firm’s mutual fund business and maximize profits at the expense of the plan and its participants.”

“…. accused of forcing its employees into expensive, poorly performing mutual funds….”

“…. caused participants to pay recordkeeping and administrative fees that were multiples of the market rate available for the same services.”

If ERISA of 1974 established standards of conduct and requirement for disclosures why do law firms continue to base their allegations on outcomes instead of breaches of behavior?

Before filing a case where there may be Fiduciary Breaches, Law Firms ought to seek a “batter” who has Subject Matter Expertise in:

. Portfolio/Wealth Management techniques/analytics
. Financial Technology; providing visible evidence of methodology

Breaches in trust are not the same as contractual breaches though the DOL seems to be trying to appease the culture via the BICE.

Until Attorney Firms seek help from those who have the skill sets to uncover the required portfolio and oversight methodologies before the filing, they will continue to be but a spectator in this sport.

Fiduciary Prologue to a Cross-Examination

The litmus test for suitable behaviors and the products that result, is woven from Fiduciary Responsibility. Breaches are born from a lack of methodology which materializes in behaviors and product selection. Perhaps these behaviors are best characterized in Trust Law which describes the prudence, commitment, and loyalty that the trustee has for the beneficiary of the asset.
According to Black’s Law Dictionary, a trustee is:
“The person appointed, or required by law, to execute a trust; one in whom an estate, interest, or power is vested, under an express or implied agreement to administer or exercise it for the benefit or to the use of another.”

In addition, Fiduciary Duty is:

“A duty to act for someone else’s benefit, while subordinating one’s personal interests to that of the other person. It is the highest standard of duty implied by law (e.g. trustee, guardian).”

The fulfillment of Fiduciary Duties becomes apparent where there is evidence of behaviors and methodology, in “content and oversight,” that improve the likelihood that the beneficiary of the asset(s) achieve their goals.

When one is compelled to discover evidence of fiduciary behaviors, clues materialize in the products that were purchased, the timing of the purchases, how such products meshed and correlated with other assets, the level of compensation, and any compensation relationships if applicable. If these facts were not transparent to the inquirer then, chances are, they weren’t to the beneficiary of the assets. Thus, the path of behavior and methodology discovery will extend and fork to include oversight.
Expert Witnesses and Subject Matter Experts
Even though there are many attorneys disciplined in ERISA and Class Actions, few have any experience in money management, financial technology, and the application of the law to fiduciary matters. That is why attorneys need assistance from Expert Witnesses and Subject Matter Experts before the case is filed.
Choosing the right experts can be a daunting task especially when the correct questions to ask are not known. Career consultants and Business Advisors are very good at methodology, modeling, and quantifying evidence. Many, however, have only “kept score from the stands” and have never “stepped into the batter’s box.” There is a clear difference between those who have applied their skill sets in different environments and those who quantify the opinions of people that do. In addition, it is probably best to seek assistance from someone who has been a fiduciary as opposed to someone who hasn’t. This is also critical in the cross examination.

Fiduciary Law Is Trust Law


The words most associated with fiduciary responsibility are prudence, trust, duty, and loyalty. Fundamentally, these words describe acts wholly aligned with putting the client’s interests first.

There seems to be plenty of evidence that the Employee Retirement Income Security Act of 1974 (ERISA) and the U.S. Department of Labor’s (DOL) most recent fiduciary clarification are modeled after trust law. Indeed, with respect to the fiduciary standard of care, trust law can go to a place where contract law cannot. Perhaps the two can be differentiated by one fundamental distinction: behavior vs outcome.

It is noted in ERISA: §1103. Establishment of Trust; (a) Benefit Plan Assets to Be Held in Trust; Authority of Trustees

In addition, the employer sponsor and its administrator admit the plan’s funding and benefit arrangement, at the very least, is that of a trust in the form 5500 which is necessary to satisfy annual reporting requirements (Section 9a & 9b).

Furthermore, it can be argued that there is a hint of “trust-like” obligation via the mandated surety bond which guarantees the faithful performance of duties.

Clarity will materialize if there is an admission that a trust relationship exists and yet this is rarely evidenced in class action filings, arguments by most of the financial services industry, and politicians. A trust relationship immediately becomes apparent by the duties owed to the beneficiary of the asset by the trustee or to parallel, the duties owed to the participant by the fiduciaries of the employer sponsor.

In a trust or fiduciary relationship, investment options and partnerships must be maintained and/or chosen with transparency and be free of conflicts of interests. For simplification purposes, there must be visibility in both content and oversight.
◦Content may be defined as investment options and its associated performance, costs, commissions, and fees.
◦Oversight may be defined as the fiduciary’s obligation to monitor the performance and behavior of all partnerships, including administrator, recordkeeper, auditor, attorney, investment advisor, money manager, and all parties where there has been a noted fiduciary transfer of duties.

Confusion between the two is often seen in legal filings. For example, did the breach occur because the investment options performed poorly or because no one was monitoring who chose them? Were the recordkeeper’s fees unreasonable or was there a lack of oversight in choosing and monitoring the chosen recordkeeper? Was there guidance and consistency in the Summary Plan Description?

A visible methodology is required for content and oversight, and yet, how can such a methodology be evidenced other than with the proper use of the interdependent components of various financial technologies (this is yet another article)?

As I read numerous articles and pour through many class actions lawsuits, I wonder if the legal community is too focused on contractual and common law and the financial services industry focused on a transaction-based business model. It can be argued that long-term professional cultural bias can inhibit the development of the necessary skill sets required for subject matter mastery. Fiduciary law is trust law. Accept it.

Neal Shikes has been a Registered Financial Services Industry professional for over 20 years and a Chartered Retirement Planning Counselor, CRPC®. He is also the “Willing Fiduciary” (http://willingfiduciary.com/) associated with Counsel Fiduciary LLC (http://counselfiduciary.com/) and a principal associate for Thornapple Associates a provider of Expert Witness Services (http://thornapple.net/).

Class Action: The Case Against JPMorgan Chase

A Class Action suit has been filed against the fiduciaries of JPMorgan Chase’s 21 billion dollar Retirement Plan on 1/25/2017.

Typical to most of these cases, it is “a class action brought pursuant to §§ 409 and 502 of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1109.” This is a lengthy complaint that describes a lot of investment content that includes the following allegations described in two counts:
. “failing to adequately review the investment portfolio..”
. “retaining proprietary funds…. despite the availability of nearly identical lower cost and better performing investment options.”
. “failing to affect a reduction in fees..”
. “failing to offer commingled accounts…. despite their far lower fees…”
. “the Defendants breached their fiduciary duties by failing to adequately monitor other persons..”

Causation, as described in the complaint, was “because substantial assets of the Plan were imprudently invested.”

There seems to be a lot of content and outcome evidence in this Class Action and a reference to the assets being held in a trust (which is mandated by ERISA). To this author, there does not seem to be an obvious statutory definition to Trust Law in our Courts. Perhaps it was never codified. However, trustee duties regarding the assets entrusted to him/her are characterized through judicial creation by the courts and the ensuing regulations. In a Trust relationship, rights are created and the behaviors owed by the trustee to the beneficiary that adhere to those rights are characterized. It seems to me that if Fiduciary Duties are characterized by the behaviors that are owed by the Trustees the causation of the breaches should focus on a lack of or a misguidance of those behaviors instead of outcome. Where market outcomes cannot be controlled, fiduciary behavior can be.

The Fintech Beneficiary

Many industries utilize technology for analytics, research, efficiency and speed, and solution discovery. In addition, we often use technology to record and quantify the behavior of others. Less obvious, however, technology provides visible evidence of the behavior of the user of the technology.

In fact, by reverse engineering one’s technology usage the user’s philosophies and intentions can materialize. Outcome can provide suspicions but it does not evidence prudence and “reasonableness,” necessarily, and certainly not in a court of law. Intent is evidenced in behaviors and this is really what the DOL’s Fiduciary Duty clarification of ERISA of 1974 wants the Financial Services Industry to demonstrate.

Financial Technology’s greatest accomplishment will be realized when it is an acknowledged path to demonstrate that providers’ behaviors truly put clients’ interests first.

Fiduciary Comprehension: Demonstrated By Asking The Right Questions (or not)

DOL tries to clarify QDIA regs on annuities in TDFs


It can be argued that, sometimes, one can determine how well something is understood by the type of question asked about the subject.

In this article, it is clear that TIAA was concerned with their current use of annuities within their Target Date Fund product as a Default Investment Option.

This was the DOL’s response….
In the spirit of that effort, the letter says that “nothing in the existing QDIA rules stands in the way of a plan fiduciary making a determination that it would be prudent to default participants into a TDF featuring an annuity.”

The letter notes that “prudence requires plan fiduciaries to engage in an “objective, thorough and analytical process” when selecting a TDF with an annuity as a default investment in a 401(k) plan.”

“The cost of the annuity, the specifics of the liquidity limitations of a given annuity, and the demographics of participants in the plan must be considered by prudent fiduciaries.”

“Sponsors must consider the extra communication efforts necessary to adequately educate participants on the liquidity limitations of annuities.
Ultimately, whether a TDF with an annuity feature qualifies as a QDIA depends “on the facts and circumstances” of a specific plan.”

The DOL is, once again, more concerned with the visible behaviors of the fiduciary as demonstrated through an “objective, thorough, and analytic process” while considering the “demographics of the participants and “considering extra communication efforts (disclosure) necessary to adequately educate participants.”

Simply, the DOL is stating…”Provide evidence that the use of annuities in your Target Date Funds is in the participant’s best interest.”

Did the entity making the inquiry understand the spirit of the regulation? Did the regulator really provide any additional guidance?

“The Class Action Holiday Season.”

Class Actions I bring

To Fiduciaries of your plan

Glad tidings of litigation

And a happy New Year!

Fiduciary Litigation made its appearance during this holiday season as 4 new Class Actions were filed against the following institutions:

. Starwood Hotels & Resorts
. Delta Air Lines
. Fidelity Management Trust Co.
. Putnam Investments

In aggregate, the following claims were made:

. Failure to make sure that Plan fees were reasonable
. Failure to offer a Stable Value fund
. Revenue sharing whereby kickbacks were made for including particular funds in the menu of investment choices
. Incurring unnecessary management fees by offering passive index funds which held other passive index funds (double layer of fees)
. Lower cost investment options were available; incorrect share class
. Excessive record-keeping/administrative charges
. Redundant investment options
. Retained historically underperforming investment options
. Excessive indirect compensation through revenue sharing
. Poor performance in Stable Value Fund
. Self-dealing

These claims seem to focus on performance outcome, fees, and compensation. The Fiduciary Relationship between a Plan Fiduciary and its Participants can be defined by the behaviors and duties that the fiduciary has for the participants. Interesting enough, I did not sense any motivations to focus on breaches of Fiduciary Duty via a lack of visible oversight and methodology as the causation of outcome.

Fiduciary Culture Shock

Some may argue that The Department Of Labor’s clarification on fiduciary responsibility is complex. It seems that this rationale is focused on the industry’s willingness and ability to adhere to it.

Some may argue that the regulation clarification is not complex at all. ERISA has existed for 42 years and Trust Law for far longer. Perhaps the fiduciary behaviors that are required to fulfill the intricacies of the required duties pose a challenge to the prevailing culture. Did the regulation suddenly become complex after 42 years?

Is the regulation complex or did the regulation expose a generation (or two) who grew complacent in not putting their clients’ interests first?

Wells Fargo: Another Class Action Filed

A new Class Action was filed against Wells Fargo on 11/22. The lawsuit accuses Wells Fargo of using their own Target Date Funds as the Qualified Default Investment Alternative (QDIA) even though they underperformed other Target Date Funds while having much higher expenses. The complaint also stated that this “generated substantial revenues for Wells Fargo” and provided “critical seed money that kept the funds afloat by boosting market share.”

It should be reiterated that ERISA requires that retirement assets are to be held in trust. To be consistent with Trust Law and a trust relationship, behaviors are dominated by the fiduciary duties owed to the participant. The fiduciary must remove all conflicts of interest and provide visible/transparent evidence that their behaviors were in the best interest of the participant.
It is not enough to only accuse, in proposition and allegation, that Wells Fargo breached their fiduciary duties. The plaintiff must do more than demonstrate higher fees. It must be proven that Wells Fargo failed in prudence, loyalty, and trust by not placing the interest of the participants above theirs.

Successful Class Actions will have to exhibit Subject Matter Expertise by proving that the defendant did not have a sound visible methodology to determine investment options and, thus, both the returns and likelihood that the participants will satisfy their retirement goals were reduced.

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