This webinar covers various topics related to retirement plans and fiduciary responsibilities. It includes presentations on defining retirement success, the importance of a prudent fiduciary process, and a case law update on fiduciary duty. The first presentation discusses defining goals for retirement and strategies to achieve retirement security. The second presentation outlines the fiduciary process, including formalizing policies and monitoring service providers. The third presentation reviews examples from case law where fiduciaries failed to meet their responsibilities and the resulting consequences. The webinar aims to provide fiduciaries with information to maintain compliance and effectively manage retirement plans.
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Essential Fiduciary Training Webinar | Full Slide Deck | Rea & Associates
1.
2. Learning objectives
This webinar will provide participants with the information needed to maintain compliance, minimize risk and
maximize your plan's participation.
Defining Retirement Success and Navigating Toward that Destination | Jeffrey Acheson, CPWA,
CFP, CPFA, AIF, Advanced Strategies Group
Attendees will learn essential information about the retirement industry of today versus the retirement
industry of tomorrow and what fiduciaries can do to manage their company's retirement plans more
effectively.
The Retirement Bullseye | Mario Giganti, CPA, CFP, AIFA, Cornerstone Capital Advisors
Wondering how you can help your employees save more for their retirement? Mario will educate attendees
about what a successful retirement plan looks like and tips to get there. He will also uncover the different
types of investors and the tactics best suited to their needs.
The Importance of a Prudent Process | Paul McEwan, CPA, MTax, AIFA, Rea & Associates
Paul will guide attendees through the plan document and will help attendees learn more about their roles
and responsibilities as a fiduciary for the plan. You'll discover the due diligence process expected of all
fiduciaries and what you can do to comply with your fiduciary obligations.
Fiduciary Duty: Case Law Update | Chris Pycraft, Critchfield, Critchfield & Johnston
Chris will show attendees first-hand what's at stake when fiduciaries fail to meet their responsibilities. You
will get an up-close and personal look at case law describing the fallout that could result from fiduciary
negligence.
3. Jeff Acheson
Advanced Strategies
Group, LLC
Mario Giganti
Cornerstone Capital
Advisors
Paul McEwan
Rea & Associates, Inc.
Chris Pycraft
Critchfield, Critchfield & Johnston
Darlene Finzer, moderator
Rea & Associates, Inc.
4. Defining Retirement
Success and Navigating
Toward that Destination
“Recalculating Route”
Presented by:
Jeffery A. Acheson, CPWA ®, CFP®, CPFA, AIF®
Certified Private Wealth Advisor®
Advanced Strategies Group, LLC
7. Financial Crisis…???
Only 14% of people say they are very confident they will have
enough money to live comfortably in retirement
• Down 9% since 20021
One of Americans’ biggest economic fears is not having enough
savings for retirement
• 92% of people think there is a retirement crisis in America1
The retirement income deficit - the difference between what people
have saved for retirement and what they should have at this point -
is calculated to be…
$6.6 trillion1
8. Is Social Security the Savior?
People typically need 65-85% of pre-retirement earnings to maintain
their standard of living2
Social Security only replaces 40% of the average person’s income2
The Social Security Normal Retirement Age is 66 for people born
1943-1954
Gradually increasing to 67 for persons born after 19542
According to the Social Security Administration the maximum
benefit in 2017 = $2,687 monthly3
The average benefit for all retired workers in 2017 = $1,3604
9. Health Care Costs for Couples in
Retirement…
Rise to an estimated $260,0005
Long-Term Care Insurance
Could add additional $130,0005
Overall Health Care Costs have increased 6%
over 20155
Highest estimate since calculations began in
20025
11. According to the Employee Benefit Research
Institute’s (EBRI) study of its 2014 year-end
database
Average Account Balance $76,293
Median 401(k) Account Balance $18,1276
20.2% of 401(k) balances > $100,0006
39.9% of 401(k) balances < $10,0006
67% of all Americans have TOTAL 401(k) SAVINGS of <
$10,000!1
12. How America Saves
Only 24% of Vanguard Accounts have
> $100,0007
½ of those earning > $100,000 (only 10% of Americans) have
balances < $113,0007
½ of participants age: 55-64 have balances < $67,0007
½ of participants with 10+ years of tenure have balances <
$91,3007
Within plans, few ever accumulate enough to buy
$1,000/month of lifetime income7
13. The Importance of Planning
The Facts ...
Source: Commissioners' Standard Ordinary Mortality Table; based on composite data (combination of smokers, non-smokers and smoking status unknown); age nearest
birthday, 2001
Some people think that retirement planning isn’t
important because they won’t live until retirement.
14. How Much Capital Will You Need at
Retirement?
Amount of capital needed to provide $1,000 of
monthly income @ 6% for 25 years
• Capital Preservation Method
» $200,000
• Capital Depletion Method
» $155,000
15. We Know What Works
…middle class workers are 15 times more likely to
save for their families’ retirement at work than on
their own….
Source: National Association of Plan Advisors
16. Over 20 million
private sector workers earning between $30K-$100K
do not have access
to a retirement plan at work.
19. Closing Thoughts
In every aspect of our lives, we strive for excellence so
why should our retirement plans be any different?
Excellent plans do not happen by accident. Begin with
the end in mind and calculate backwards.
Be realistic, don’t sugar-coat the truth - get help from
professionals who truly understand the gravity of the task
ahead and the solutions available to achieve financial
success.
20. Conclusion
Everybody has a retirement plan, some are created by
design and some are created by default.
Designed plans have pre-determined costs while default
plans have undetermined consequences.
What kind of plan do you have?
Do you need to recalculate your route?
22. References
1 The Retirement Crisis and a Plan to Solve It, by Chairman Tom Harkin, The Retirement Crisis, see www.help.senate.gov , July 2014
2 Learn About Social Security Programs https://www.ssa.gov/planners/retire/
3 Smith, Austin. “Here’s the maximum Social Security benefit in 2017” for the Motley Fool, December 13, 2016
https://www.usatoday.com/story/sponsor-story/motley-fool/2016/12/13/whats-maximum-social-security-benefit-2017/95088994/
4 Campbell, Todd. “How Big Will the Average American’s Social Security Check Be in 2017?” Fox Business, November 27, 2016
http://www.foxbusiness.com/how-big-will-average-social-security-check-be-in-2017
5 Fidelity’s Retiree Health Care Cost Estimate, August 16, 2016
6 Employee Benefit Research Institute No. 423 (see www.ebri.og Issue Brief ) by the Employee Benefit Research Institute, April 2016
7 “How America Saves 2017” Vanguard 2016 defined contribution plan data
https://institutional.vanguard.com/VGApp/iip/site/institutional/researchcommentary/article/HowAmericaSaves2016
23. The Retirement Bullseye
Help your employees save more now, invest
wisely, and retire on time, with a retirement
paycheck for their life!
24. Table of Contents
What is a retirement plan’s “Target”?
What are 401(k) Plan Measurements that all Sponsors need
to know?
Which employees need help and why?
What is “Courageous” plan design?
How to create ongoing engagement with employees?
25. No compliance issues or complaints?
Only High Performing Investment Options?
Low Fees?
How about a certain Participation Rate
Or, Deferral Rate
What about the Plan’s Income Replacement Ratio?
There is likely an 85% chance that 85% of your employees are not
on track to replace their income needs in retirement?
What is a retirement plan’s target?
26. 401(k) Measurement Reports
Plan Participation Rates
Plan Deferral Rates by HCE/NHCE
Plan Income Replacement Ratio
Age vs. Stock Allocation Analysis
Fees & Expenses
Assessment of Investment Quality
28. Sample: Age vs. Equity Report
This information is for illustrative purposes only. Actual plan data may vary.
29. Sample: Fees & Expenses
This information is for illustrative purposes only. Actual plan fees & expenses may vary.
30. Investment Quality - Fiduciary Score ®
“Red is STOP, Green is GO”
Source: fi360 Used with permission.
31. How do we identify who needs help and why?
15% of employees want to “do it myself” or seek outside
professional help to coordinate outside investments (typically
HCE)
85% of employees want the plan to “do it for me” (typically
non HCE)
• Likely stay defaulted
The 85% Rule
32. Auto to the 5th Power (A case study approach)
What can we do to make it easier for your “do it for me”
employees?
Automatic Enrollment
Automatic QDIA
Automatic Escalation
Automatic Re-enrollment
The Stretch Match
Courageous Plan Design for the 85%
33. Automatic Enrollment
90% stay enrolled (1)
Automatic QDIA
70% stay in Default Fund (1)
Automatic Escalation
80% automatically increase investments (1)
Automatic Re-enrollment
Recent Study-80% stay in Default after 1 years (2)
(1) Source: 2015 Vanguard Study – “Automatic Enrollment: The Power of the Default”
(2) Source: 2017 Vanguard Study – “Re-Enrollment: One Year Later”
Case Study Findings – Vanguard
34. Reenrollment in action (hypothetical example)
Improving Plan Diversification through using
the QDIA & Reenrollment
Source: American Funds – “Reenrollment Can Lead to Better Participant Outcomes”, used with permission.
35. Start with “Auto to the Power of Five”, then provide each
employee:
Their “Desirement Mortgage”
• Personal Retirement Readiness Report
Be the CEO of your Paycheck Manufacturing Company
• How to use Other People’s Money
Understand the Stages of an Investor’s Life and how to
allocate appropriately
Analyze & measure results
Employee Engagement
36. This presentation is not to be redistributed.
Cornerstone is registered with the Securities and Exchange Commission as an
investment adviser under the Investment Advisers Act of 1940, as amended.
This document does not constitute an offer or solicitation for the purchase or sale of
any security or investment product which may only be made by means of delivery of
approved confidential offering materials. Investing involves risks, including the
potential loss of some or all of the initial investment. Our fees are fully disclosed in
our Part 2A of Form ADV and may be updated from time to time. Part 2A of Form
ADV is available upon request.
Past performance is not a guarantee of future results.
Disclosures
38. The Importance of a Prudent Process
What we will cover today in this part of the program:
The five fiduciary responsibilities under ERISA
Definition of fiduciary duty
Who is a plan fiduciary?
The fiduciary process for your retirement plan:
• How to get organized
• How to formalize your process
• How to implement your process
• How to monitor your service providers
39. The Importance of a Prudent Process
Five fiduciary responsibilities under ERISA:
Act solely in the best interests of plan participants
Act prudently
Follow the plan documents
Diversify plan assets
Pay only reasonable plan expenses
40. Getting Organized
Definition of fiduciary duty
A fiduciary duty is a legal duty to act solely in another
party's interests. Parties owing this duty are
called fiduciaries. The individuals to whom they owe
a duty are called principals. Fiduciaries may not profit from
their relationship with their principals unless they have the
principals' express informed consent.
41. Getting Organized
Who are the fiduciaries of a retirement plan?
Named fiduciaries
Functional fiduciaries
42. Getting Organized
Educating the plan fiduciaries
Demonstrating an awareness of responsibilities
• Fiduciary acts – control or discretion over plan assets
• Non-fiduciary acts – ministerial duties, following directions or
statutory requirements, no discretion over plan assets
Understanding roles & responsibilities of all involved parties
Sources of fiduciary training
43. Getting Organized
Roles of parties to a retirement plan
Plan sponsor
Plan trustee
Participants
Service providers
• Investment advisor
• Investment managers
• Record keeper
• Third Party Administrator
45. Getting Organized
Reviewing service agreements and fees
Agreements should be in writing
Should identify services provided and fees
Fiduciary status must be in writing
Should identify who is paying the fees – ERISA 408(b)(2)
46. Formalizing the Process
Investment Policy Statement
Investment decision making roadmap for committee
Should be coordinated with investment advisor
Contents
Plan objectives
Roles & responsibilities
Asset classes
Risk tolerances, Time horizon
Fund selection process
Fund monitoring process
47. Implementing the Process
Selection of service providers
Selected in accordance with plan design considerations
• Participant investment direction requirements
• Qualified default investment alternative
• Automated plan design features
Decisions regarding investment strategies and types of
investments are documented
Reasonable due diligence process
Request for proposal process
49. Monitoring Service Providers
Periodically measuring investment performance against
benchmarks and expectations
Investment monitoring criteria should align with investment
selection criteria
Quarterly dashboard of plan data
• Investment information
• Plan fee information
– Benchmarking plan fees
– Request for proposal process
53. Definition of Fiduciary
Background
The Employee Retirement Income Security Act of 1974
(ERISA) outlines a number of requirements for retirement
plans.
The Department of Labor (DOL) has authority to regulate
these plans.
ERISA requires plans to have fiduciaries – persons who
manage employee benefit plans and assets – and outlines
a number of responsibilities for plan fiduciaries.
Thus the definition of a “fiduciary” is very important.
54. Definition of Fiduciary (cont.)
Definition
Narrowly defined for decades using a five-part test.
Person with no discretionary authority over assets, and who, for
compensation:
1. Renders advice as to the value of, or make recommendations
as to the advisability of investing or purchasing securities or
other property;
2. On a regular basis;
3. Pursuant to a mutual agreement;
4. The advice serves as the primary basis for investment
decisions; and
5. The advice is individualized based on the particular needs of
the plan.
55. New Fiduciary Rule
New Rule
In April 2016, the DOL issued its long-awaited final
rule regarding who is a “fiduciary” of a plan.
The updated definition is broad and has been
controversial.
Purpose of Change
THIS EXPANSION IS PRIMARILY INTENDED TO
COVER ADVISORS WHO MAKE
RECOMMENDATIONS IN CONNECTION WITH
SELF-DIRECTED 401Ks AND ROLLOVERS FROM
IRAs.
56. New Fiduciary Rule (cont.)
New Definition (29 CFR § 2510.3-21)
Expanded to include any person that provides to a plan, plan fiduciary, plan participant
or beneficiary, IRA, or IRA owner, for a fee or other compensation, direct or indirect
advice about a wide range of matters, including:
• The advisability of acquiring, holding, disposing of, or exchanging, securities or
other investment property, or how property should be invested, rolled-over,
transferred or distributed from the plan or IRA; or
• Recommendations about the management of securities or other investment
property; or recommendations with respect to rollovers, transfers, or distributions
from a plan or IRA; and
The aforementioned recommendation is made either directly or indirectly by a person
who:
• Represents or acknowledges that it is acting as a fiduciary;
• Renders the advice pursuant to an agreement or understanding that the advice is
based on the particular investment needs of the recipient; or
• Directs the advice to a specific advice recipient or recipients regarding the
advisability of a particular investment decision.
57. New Fiduciary Rule (cont.)
Exceptions to New Rule include the following:
Best Interest Contract Exemption (BICE)
Allows advisors to receive compensation that would otherwise be considered a
prohibited transaction (i.e., self dealing or receiving payments from third parties).
Advisor must acknowledge its fiduciary status in writing and adhere to enforceable
standards of fiduciary conduct and fair dealing.
Only applies to financial institutions.
Principal Transactions Exemption
Generally, principal transactions create a conflict of interest under the fiduciary rule.
The Principal Transactions Exemption allows the advisor to engage in a principal
transactions or riskless principal transactions.
There are strict requirements for the applicability of this exemption, including limits on
the types of investments that may be purchased and a requirement that the Financial
Institution acknowledge its fiduciary status in writing. 29 CFR Part 2550.
58. Delays to the New Fiduciary Rule
The applicability date of the Fiduciary Rule was originally set for April 10, 2017. In
February, the President sent a memo to the Secretary of Labor instructing the DOL to
conduct further analysis on the economic impact of the regulations.
In response, the DOL decided to delay implementation of certain parts of the
Fiduciary Rule, extending the applicability date by 60 days to June 9, 2017.
The BICE and Principal Transactions exemptions are also applicable on
June 9, 2017, but full compliance is not required until January 1, 2018.
This means that for the conflicted transactions in which BICE or Principal
Transactions would apply, advisors are only required to comply with impartial
conduct standards during the transition period.
“Impartial Conduct Standards generally require that advisers and financial
institutions provide investment advice that is in the investors' best interest,
receive no more than reasonable compensation, and avoid misleading
statements to investors about recommended transactions.” 82 FR 16902.
On May 22, 2017, Labor Secretary Alexander Acosta stated in a Wall Street Journal
Op-Ed that the DOL has no legal basis to further postpone the June 9, 2017
applicability date.
59. Duty to Continually Monitor Investments
Tibble v. Edison Int’l, 135 S. Ct. 1823 (U.S. May 18, 2015)
o In Tibble v. Edison Int’l, plaintiffs alleged that losses suffered in
Edison International’s (the employer) defined benefit 401(k)
retirement plan were caused by a breach of fiduciary duty. Plan
fiduciaries had selected and continued to hold higher priced
retail mutual funds, when materially the same mutual funds were
available as lower cost institutional funds.
o The District Court and Appellate Court barred the claim under
ERISA’s six-year statute of limitations.
o This decision was based on the conclusion that Edison only
violated its fiduciary duty when it selected the funds.
60. Duty to Continually Monitor
Investments (cont.)
Tibble (con’t.)
The Supreme Court vacated the judgment and remanded case in a 9-0
decision.
The Supreme Court made the following findings to remand the case:
• ERISA Fiduciary Duties are derived from the common law of trusts.
• Under ERISA, a fiduciary must discharge its responsibilities with the
skill, prudence, and diligence under the prevailing circumstances that a
prudent man acting in a like capacity and familiar with such matters
would use.
• Under the law of trusts, the duty to continually monitor investments is a
duty that exists separate and apart from the duty to exercise prudence
in the initial selection of the investments.
• Deriving from trust law, the Court found that an ERISA fiduciary does
have a duty to monitor investments and remove imprudent ones.
61. Duty to Continually Monitor Investments
(cont.)
Scope
The Court did emphasize that the duty to monitor should be
exercised according to the fiduciary’s obligation to discharge its
responsibilities with “care, skill, prudence, and diligence” pursuant
to 29 U.S.C. § 1104(a)(1).
But the Tibble court did not clarify the scope of the duty to monitor
investments in the ERISA fiduciary context because it did not need
to reach the issue.
Remand
Although the Supreme Court found a continuing duty to monitor
investments, the case was still dismissed on remand.
The Ninth Circuit dismissed the case, stating that the plaintiffs failed
to argue an ongoing duty to monitor at the District Court level.
62. University Fee Cases
12 class action lawsuits were filed against 12 universities over
the last year.
See, e.g., https://www.bna.com/duke-second-school-
n73014450919/.
The lawsuits allege a breach of fiduciary duty on the part of
the universities in the administration of their retirement plans.
The alleged breaches of fiduciary duty generally include:
Breach of duties of loyalty and prudence (unreasonable
administrative fees);
Breach of duties of loyalty and prudence (unreasonable investment
management fees and performance losses); and
Failure to monitor fiduciaries.
63. University Fee Cases (cont.)
The primary arguments made in support of the claims are as follows:
Excessive administrative and recordkeeping fees are in violation of ERISA’s
requirement that fees be reasonable.
Too many plan options, leading to uninformed decision making and/or no
decision making at all by plan participants. “Decision paralysis.”
Multi-recordkeeper platform is inefficient and wasteful.
Defendants failed to invest in lower cost institutional funds that were
available and identical to higher cost retail funds.
The plan carried duplicative investment options, which confused participants
and lessened the plan’s ability to negotiate for lower fees.
See Henderson et al v. Emory University, Complaint, Docket 1:16-cv-0292.
64. University Fee Cases (cont.)
Current Status
o In May of 2017, federal courts have ruled on motions to dismiss
in the Emory University and Duke University Cases.
In both cases, the majority of claims were allowed to move
forward.
Both rulings addressed the “decision paralysis” claim:
• In the Emory University case, the Judge rejected the claim
that too many plan options is a breach of fiduciary duties.
• However, the Judge in the Duke University case allowed the
decision paralysis claim to go forward.
65. Stock Drop Cases
Background
o Until recently, motions to dismiss in stock drop cases were
evaluated under the pro-defendant Moench presumption prudence.
o Under Moench v. Robertson, ESOP fiduciaries were presumed to
have acted prudently, absent a pleading of facts alleging that the
employer “was on the brink of collapse.”
oMoench v. Robertson, 62 F.3d 553 (3d Cir. N.J. Aug. 10, 1995).
Fifth Third Bancorp v. Dudenhoeffer,
o Dudenhoeffer overruled the Moench presumption.
ESOP fiduciaries are not entitled to a presumption of prudence –
subject to same duties that apply to all ERISA fiduciaries.
Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459 (U.S. June 25,
2014).
66. Stock Drop Cases (cont.)
Dudenhoeffer modifies the pleading standard in stock drop cases as
follows:
To state a claim for breach of the duty of prudence, the complaint must
plausibly allege a legal alternative action that could have been taken, and
that a prudent fiduciary in the same circumstances would not have
viewed as more likely to harm the fund than to help it.
If the alleged imprudence is based on the failure to act on inside
information, courts must consider:
(1) whether buying/selling the stock and/or publically disclosing negative
information would have violated securities law, and
(2) whether the complaint plausibly alleges that a prudent fiduciary could
not have concluded that ceasing purchases or disclosing negative
information would do more harm than good.
Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459, 189 (2014).
67. Stock Drop Cases (cont.)
Post-Dudenhoeffer
o Subsequent cases confirm that the Dudenhoeffer pleading
standard is high.
o Lower courts have reached varying interpretations of
Dudenhoeffer, some interpreting to be pro-plaintiff and others
interpreting to be pro-defendant.
o In Amgen Inc. v. Harris, 136 S. Ct. 758 (U.S. Jan. 25, 2016), the
U.S. Supreme Court reinforced the stringent pleading standards
required by Dudenhoeffer.
oIn Amgen, the Ninth Circuit inferred an alternative action that
could have been taken.
oHowever, the Supreme Court held that because the
alternative action was not stated in the complaint, the
complaint should fail the Dudenhoeffer pleading standard.
68. Remedies
CIGNA Corp v. Amara, 563 U.S. 421 (U.S. May 16, 2011)
Plaintiffs sought relief after failure to disclose changes to
the pension plan.
Plaintiff’s sued under Section 502(a)(1)(B), which allows
plan participants to bring claims to enforce the terms of the
plan.
The District Court crafted a remedy that changed the plan,
and awarded plaintiffs what they would have received
under the old plan.
The Supreme Court held that 502(3) would have allowed
this kind of equitable remedy, as it is not covered by
502(a)(1)(B).
69. Remedies
Rochow v. Life Ins. Co. of N. Am., 780 F.3d 364 (6th Cir. Mich.
Mar. 5, 2015)
Plaintiff sued insurance company for improperly delaying long term disability
payments.
Plaintiff sought enforcement under 502(a)(1)(B) and disgorgement of profits
under 502(3).
The Sixth Circuit held that where there is an adequate remedy under
502(a)(1)(B), disgorgement of profits is not available under 502(3) for the same
injury.
502(a)(1)(B) is an equitable remedy that aims to make the plaintiff whole.
Allowing the plaintiff to repackage the same injury as a 502(3) claim is contrary to
the purpose of ERISA, and would result in duplicative recovery.
In Rochow, the injuries were not separate and distinct, as the disgorgement of
wages is ancillary to the withholding of payments.
70. Fiduciary Liability Coverage and ERISA
Bonding
Similar concepts, but serve different functions:
ERISA Bonding
ERISA bond is required by law and protects the Plan assets from theft
and misappropriation due to “fraud or dishonesty.”
ERISA bonding is required for all plan fiduciaries and any persons
handling plan assets.
The plan is generally the named insured.
Fiduciary Liability Insurance
Fiduciary liability insurance protects plan fiduciaries by covering litigation
fees and damages that may result from fiduciary liability litigation.
Fiduciary liability insurance is NOT required by ERISA and DOES NOT
satisfy the bonding requirement.
Generally does not cover acts of fraud or dishonesty.