5 Things of Which Plan Fiduciaries Need to Be Aware

Whoever said ignorance was bliss surely wasn’t talking about fiduciary litigation.

While I’ve had the opportunity over the past decade and change to peruse plenty of filings and findings related to excessive fee suits, the recent amended filing in a case against New York University (NYU) included something new – a long list of statements and acknowledgements by plan fiduciaries that, according to the plaintiffs, “displayed an alarming lack of understanding of basic terms and principles in investment management and fiduciary best practices.” Indeed, one of the plan committee members was called out for their “remarkable unawareness of basic facts” relating to the plan.

Now, one must take care in accepting the assertions in litigation at face value, and it’s too early to say if they – along with a response by the defendants – will carry the day with a judge. Still, it’s hard, more than a decade after the first of the so-called excessive fee cases were filed, to believe that there remain multi-billion dollar retirement plans in operation with committees – and as here, with the involvement of an investment advisor – that don’t know – well, the things that the long-standing practices of these committees suggest are still in place.

The job of a plan fiduciary isn’t all about fees, of course, though it’s certainly been a focus of these excessive fee lawsuits. Still, it seems to me that there are some things that plan fiduciaries of any plan size should be aware, and of which responsible plan fiduciaries should have a working knowledge.

Said another way, a plan fiduciary could be in trouble if you don’t:

• Know how much your plan pays in fees. And to whom. And for what.
• Know how many (and which ones) of your plan’s investment choices are offered in retail class shares. And if institutional class shares are available, and under what circumstances/conditions.
• Know how much of your plan’s investments are in funds that belong to your recordkeeper. And why.
• Know what revenue-sharing is (and where it goes).
• Have a basis for determining that the fees paid by the plan/participants are “reasonable.”

That’s not an exhaustive list, of course though, at least with regard to fees and expenses, I think it covers the key issues, certainly the ones that have arisen in litigation. Remember that plan fiduciaries – who have personal liability for their actions – are charged with “paying only reasonable plan expenses.” And, as noted above, plan fiduciaries – and those who guide them – have had at least a decade to see the writing on the wall on these excessive fee lawsuits.

Arguably, that can’t be done without first knowing what those expenses are, and having some basis of comparison/evaluation to ascertain if they are, in fact, reasonable in view of the services provided.

Particularly if you don’t want to be caught “unawares.”

- Nevin E. Adams, JD
 
See also:

• Your Plan Might Be an Excessive Fee Litigation Target If…
• 4 Things Before You Get to That RFP…
• What You Can Get with an RFP

Awesome 'Sauce'

Earlier this year I went to an event in our nation’s capital called “Awesome Con.”

As event names go, it’s a bit corny, but if it evokes a reference to Comic-Con, well that’s the point. Awesome Con is a mixture of cosplay (dressing up like your favorite comic book, gaming, or anime characters), celebrity meet-and-greets, and forums where like-minded individuals can not only learn, but debate plot lines, scientific trends that affirm (or refute) science fiction, and sit in on panels by some of the industry’s leading minds (and artists). No, I didn’t dress up – but I very much enjoyed getting to meet (and get autographs from) Marvel Comic’s Stan the Man Lee (see photo), Doctor #10 (David Tennant), and Eliza Dushku (of Buffy the Vampire Slayer fame), among others).

To be honest, I didn’t attend my first – the first – 401(k) Summit with that kind of anticipation. I had accepted an invitation to speak at an event – not that unusual – but at what was then a pretty unusual event – a conference for advisors who worked with retirement plans. What was even more unusual is that it was sponsored by ASPPA, a group I hadn’t previously associated with advisors. But what a remarkable event it turned out to be, both in terms of content, and the opportunity to meet and network with individuals like Fred Reish (our industry’s own Stan Lee?), and so many great advisors, many of whom would go on to be part of the group that would, a decade later, form the National Association of Plan Advisors.

A lot has happened since that first 401(k) Summit, most significantly the formation of NAPA itself. And a lot has happened to the NAPA 401(k) Summit since then – so much so that we now refer to it proudly, and with justification, as the nation’s retirement plan advisor convention. In an era where many advisors have chosen to cut back on such things, the NAPA 401(k) Summit continues to grow and expand.

This growth is both a function of the quality of the content and presenters – not to mention that of the attendees. Everybody is at the top of their game at the NAPA 401(k) Summit, and it shows. From those relatively humble, but promising beginnings, it has emerged as the must-attend event for advisors who are committed to the business of retirement plans.

As we reminded attendees last year, as important and impact-filled (and fun) as the NAPA 401(k) Summit is, it is much more than “just” a conference. This year more than most we’ve had the opportunity to see the impact that NAPA has on critical issues like the fiduciary regulation – creating and pushing for innovative solutions like the level-to-level fee exemption – and tax reform – pushing back against Rothification as a means of paying for corporate tax cuts, and outlining a set of retirement policy principles for tax reform ahead of the first reform proposals. And yes, in state capitals like Nevada, which is contemplating its own fiduciary standard, or in Oregon, Connecticut, and California, where state-run alternatives for private sector workers could be problematic.

But here’s the thing that many don’t appreciate. The NAPA 401(k) Summit is responsible for a significant amount of funding for our advocacy efforts on behalf of retirement plan advisors. That’s right – your registration fee doesn’t go to some private equity firm’s bottom line, nor does it simply act to keep a conference company in the business of organizing conferences – it supports advocacy efforts on your behalf, on Capitol Hill, with regulatory agencies, and – these days – in state capitals as well.

I know that April (still) seems a long ways off – but this year more than most the NAPA 401(k) Summit is that advisor experience you won’t want to miss. Even if you have been attending for years, you’ll get more from it than you can imagine – and your support will mean more to the benefit of the nation’s retirement system and retirement security than you may expect.

Join us. Your voice, more than ever, is needed. It’s going to be… Awesome.

Nevin E. Adams, JD

Debt ‘Limits’ – Causation, Correlation or Coincidence?

You have to wonder what the Wall Street Journal has against automatic enrollment.

The latest instance of finding the cloud in this silver lining arose in a recent Journal article by Anne Tergesen, “Downside of Automatic 401(k) Savings: More Debt” (subscription required). The article, based on the findings of a recent academic study, says that automatic enrollment has “pushed” millions of people who weren’t previously saving for retirement into those plans – but quickly cautions that “many of these workers appear to be offsetting those savings over the long term by taking on more auto and mortgage debt than they otherwise would have.”

This “crowding out” concern – that automatic enrollment would stretch already strained financial resources, particularly among lower-income workers – has long been a sticking point for those advocating caution regarding automatic enrollment.

The Study

So did the study – drawn based on what the researchers termed a “natural experiment” created by the decision of the U.S. Army to automatically enroll civilian workers into their retirement savings plan at a point in time – validate this concern? Well, the researchers found “no significant change” in debt levels of those automatically enrolled four years after hire – excluding auto loans and first mortgages.

In those categories, the researchers noted that automatic enrollment increased auto loan balances by 2% of income, and first mortgage balances by 7.4% of income. However, the researchers didn’t seem overly concerned about these increases, noting that they involved the acquisition of assets (and in the case of a home mortgage, an asset that might actually play a factor in retirement security) – though they did conclude that the advent of automatic enrollment seemed to leading workers to take on more debt to offset the “loss” in income to automatic enrollment savings.

On the other hand, the researchers note that it seems likely that much of the increase in first mortgage debt is caused by automatically enrolled employees being able to obtain larger mortgages due to their extra TSP balances loosening down payment constraints. And as regards their preparation for retirement, automatic enrollment clearly helps. The researchers noted that at 43-48 months of tenure, automatic enrollment increases cumulative employer plus employee contributions since hire by 5.8% of first year annualized salary.

Where’s the ‘Beef’?

So, what’s the beef about automatic enrollment? Well, despite the headline (and the subhead, “New research finds employees auto-enrolled in retirement plans borrow more than they otherwise would have, offsetting savings”), the article struggled to find anyone (including three of the authors of the research) who would say anything bad about automatic enrollment. But then, back in 2013, this same Ann Tergesen wrote about the “Mixed Bag for Auto-enrollment,” claiming that “employees who are automatically enrolled in their workplace savings plans save less than those who sign up on their own initiative.”

That article, in turn, built on – and cited – a 2011 article Tergesen jaw-droppingly titled “401(k) Law Suppresses Saving for Retirement.” In the case of the latter, Tergesen glommed on to one of 16 possible scenarios, and focused on the notion that some workers would simply rely on the mechanics of automatic enrollment’s 3% default, rather than picking the higher rate that they might if they filled out an enrollment form (encouraged by things like education meetings and incentivized by things like a company match). Remember that nothing about an automatic enrollment option requires workers to rely on automatic enrollment. In fact, under automatic enrollment, total savings actually went up, notably for lower income workers.
 
Auto Impact

The nonpartisan Employee Benefit Research Institute (EBRI) has estimated that moving to automatic enrollment improves projected retirement outcomes by anywhere from 17.5% to more than 33%, depending on age and income. Indeed, the lowest income quartile saw their outcomes improve by more than 20% pretty much across the board. In fact, EBRI has previously projected that approximately 60% of those eligible for automatic enrollment would immediately be better off in those plans than in one relying on voluntary employment, and that over time (as automatic escalation provisions took effect for some of the workers) that would increase to 85%.

And while it wasn’t mentioned in the most recent Journal article, the study at hand acknowledged that automatic enrollment was “extremely successful at increasing contributions to the TSP at the left tail of the distribution while leaving the middle and the right of the distribution unchanged.” Said another way, automatic enrollment did a great job of increasing contributions among lower income workers.

All in all, while automatically enrolled workers in the study (and let’s remember this is a specific subset of the population for a limited period of time), on average had more debt in two very specific categories, it’s far from clear that this was a consequence of automatic enrollment – and it’s by no means certain, even if it were, that in the long term it’s a bad thing.

Indeed, it’s not clear that the dots connected here are causality or simply an interesting correlation.
What is clear is that automatic enrollment has been enormously successful at helping workers – particularly lower income workers – prepare for a more financially secure retirement.

- Nevin E. Adams, JD