Willing Fiduciary

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Month: October 2016

Fiduciary Ethics: Removing Conflicts of Interest

Removing conflicts of interest is a recognized and necessary ethical behavior. So much so that the U.S. Office of Government Ethics (OGE) is dedicated to overseeing the executive branch’s ethics programs, programs whose primary function is to prevent and resolve conflicts of interest. To give you an idea as to the size and scope of this endeavor, there are approximately 4,500 full-time and part-time ethics officials who work in the executive branch that try to provide employees assistance in identifying and resolving potential conflicts of interest.

The OGE’s mission is to create public confidence in the impartiality of government decision making by improving transparency, increasing accountability, and making sure that senior leaders are making decisions based on the interests of the public rather than their own personal financial interests.

The Department of Labor’s clarification attempts to define and enforce the required ethics that bind human behavior in governance where Fiduciary Duty and Responsibility is mandated. It is no different than the OSE’s mission, 18 U.S.C. § 208, or, ultimately, the Constitution.

Fiduciary Focus #1 of 3: Conduct not Outcome

The most successful Class Actions under the Employee Retirement Income Security Act of 1974 (ERISA) against Employer Sponsored Plan Fiduciaries will uncover behaviors that are detrimental to the participants of the plan. Behaviors, not products or product outcomes.

If, under ERISA or Trust Law, Fiduciaries must act solely in the interest of participants then there must be visible evidence of loyalty and prudence. Only by examining the conduct and methodology of the Fiduciaries can it be determined whose interests were paramount and if a breach of duty has occurred. Once a behavior is suspect it, perhaps, is better to investigate possible causation based on the visible evidence or lack thereof. Walking through “the valley” of causation, is not a journey that a CPA or Attorney should be embarking on alone. They have little experience in the proper conduct and methodologies required to complete the journey.

Outcome may foster presumptions of prudence. Conduct and allegations supporting propositions MUST appear in the complaint.

Next two blogs:

Fiduciary Drift: Content

Fiduciary Drift: Oversight

University of Litigation

Since August 1st, twelve Class Action lawsuits were filed against universities for breaches of ERISA Fiduciary Duties:
Yale: $3.6 Billion Assets under management (AUM), 37,939 participants
NYU: $4.2 Billion AUM, 24,164 participants
Columbia: $4.6 Billion AUM, 27,000 participants (there are two separate lawsuits)
Cornell: $3.1 Billion AUM, 29,452 participants
U of Penn: $3.88 Billion AUM, 26,904 participants
Duke: $4.7 Billion AUM, 37,939 participants
Johns Hopkins: $4.3 Billion AUM, 24,561 participants
Vanderbilt: $3.4 Billion AUM, 41,863 participants
Northwestern: $2.87 Billion AUM, 33,015 participants
USC: $2.19 Billion AUM, 28,423 participants
Emory: $3.66 Billion AUM, 51,797 participants

Here are some allegations:
. No competitive bidding process
. Excessive fees
. Underperforming mutual funds
. Duplicative mutual funds
. Incorrect, more expensive (sometimes Retail), Share Class

Class Action is in session!

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