Limiting Fiduciary Liability (Costs)

A recent survey of insurers highlights the criteria that a number of the nation’s leading fiduciary liability insurers identified as the biggest sources of fiduciary risk—within the control of plan fiduciaries. 

Now, arguably, the report—titled “What Drives Fiduciary Liability?”—might have been more accurately titled “What Drives Fiduciary Liability Insurance Costs?”—or even more precisely “What Drives Fiduciary Liability Insurance Costs That You Can Do Something About?” Indeed, the report’s authors note that it was specifically focused on sources of risk that are within the control of fiduciaries. That’s key, because there are things that attract litigation (such as plan size or even stock price) that aren’t. 

Moreover, the survey respondents (there were 8 of the 12 that Aon said account for 85% of the total gross written premium placed by the firms in 2020) were asked only to evaluate pricing criteria as having a significant, small or nonexistent impact—though one might want to find something between significant and small, at least.

The survey’s authors identified five key takeaways—and while there are more elements discussed in the report, that seems a good place to start:

1. Fees are very important.

Well, to quote Homer Simpson, “doh.” Indeed, the only surprises here are that (only) 88% of the respondents identified periodic fee benchmarking reviews by the investment committee as a “significant” driver of insurance premiums; (just) 75% said it was significant if the plan uses revenue-sharing or Sub-TA type revenues; and (a mere) 63% said that using retail mutual fund share classes would fall in that category. Granted, with only 8 respondents (albeit with big market share), we’re talking small numbers.

Moreover, note that these points aren’t about what the fees are, and certainly not what they are relative to the services provided (the true measure of “reasonable”), but about fee structures and process. It is, in other words, about what might be seen as the “appearance” of impropriety. Indeed, as has been borne out in litigation, there’s no legal issue with any of the foregoing—but all of these practices (or, in the case of the review, non-practices) have been challenged as if they were themselves a violation, or at least an indicator, of a fiduciary breach. 

Suffice it to say that if the plan is currently doing (or not doing, in the case of a review) these things, you should be sure to have prudently considered the reasons—and to have documented that consideration—but can likely expect to pay more in insurance premiums, regardless. 

2. Committee minutes are important, but it matters less who takes them.

Only a third of the survey respondents said that taking formal minutes was a “significant” factor (the rest said the impact was “small”—bearing in mind that the only other option was “nonexistent”), so I have a feeling that the Aon report authors exercised a little editorial “discretion” in positioning that as important. In fact, that seemed very low to me, certainly in view of the impact in persuading a judge (much less a DOL auditor) that you do, in fact, have a prudent process in place. Perhaps it reflects what still seems to be a consistent caution from the legal community: that such things can be a “smoking gun” in litigation. On the other hand, I’ve seen committee minutes be effective shields in having cases dismissed at the pleading stage, so…

The report does indicate that there is no particular advantage in having an advisor or legal counsel act as scribe, though the latter might well limit the “smoking gun” risk.

3. Investment advisors are viewed as a moderate influencer of premiums.

This one was a bit of a head-scratcher as well—perhaps reflecting the varying quality and expertise of the investment advisors whose expertise might be tapped. The Aon report said the responses were split almost evenly among the impact of an advisor being deemed as significant, small or nonexistent, and even when going on to qualify that statement (with the quality of the advisor), only a quarter (that’s two firms) said it would have a significant impact on pricing. (Half described the impact as “small.”) 

There were some qualifiers here—the impact was seen as small by one “unless related party in which case significant impact” (and I’m assuming a negative one), another stated that an “experienced advisor is expected,” and still another cautioned that while this was a factor, “…outside vendors are not foolproof and the insured retains fiduciary liability with respect to them.” 

4. Employer stock in DC plans remains a top concern for insurers.

This one appears to matter—a lot. Then again, it wasn’t unanimous—88% rated it as a significant factor, though that figure dropped to 50% when there is a limit on the size of the investment, which is increasingly common. Indeed, so-called “stock drop” suits seem to (still) crop up every time there is a disappointing earnings announcement or some piece of bad PR that drives down the stock price. 

That said, it’s one thing to bring suit—and yet, it remains a hard suit to win based on recent case history. 

Not mentioned: the inclusion of proprietary funds. It’s seldom a standalone rationale for bringing suit, but—well, it’s increasingly common, at least among organizations that have that capability.

5. Environmental, social and governance (ESG) options in DC plans play a minor role in pricing fiduciary liability insurance.

The inclusion of this particular item was a bit of a head-scratcher, though the results—62% said it had no impact on the premium pricing—were not. In fairness, and as noted by the survey’s authors, the survey was fielded after the Biden administration’s announcement that it was not going to enforce the rule put in place by the Trump administration, but my guess (and theirs) is that it simply reflects the relatively small take-up rate by plans and the tepid adoption by participants. Indeed, one of the survey respondents commented that the impact “depends on the % of plan assets or # of investment options offered. As well as if the plan were to attempt to force a requirement to its participants.” 

Ultimately, and as one of the survey respondents noted, “While we look at a number of items that are in the survey, the problem is that there is pressure to settle, in some cases because the cost to defend would be greater than the settlement value. Defense costs and settlement amounts in the so-called fee cases are incredibly high, even where the client has robust fiduciary processes.”

Still, forewarned is forearmed. Like vaccines, addressing those issues might not completely forestall litigation—but it would surely make for a less painful set of “symptoms.”

- Nevin E. Adams, JD

Attention Getters

I was recently taken to task for last week’s column about retirement savings regrets.

More precisely, my column about the regrets expressed in a recent American Century survey drew the attention of Faith Teope in a LinkedIn post titled, “Dear Finance Experts: We Would Listen, But We Don't Care.” In fairness, it wasn’t so much my column (“boring but true”), or even the American Century survey’s findings that came in for criticism, but more the head-scratching that the survey set off among financial professionals (including, I suppose this one) as to why people aren’t paying more attention to things like… saving for retirement. Her premise—that we’re using language that doesn’t resonate with those we hope to motivate—is, frankly, unassailable. 

In fact, it’s a topic I broached (at least at a high level) earlier this year in a post titled, “Is it Time to Retire Retirement?” As I noted then, for all but the most financially astute, trading off a here-and-now need (or want) for some obscure future notion like “retirement” is a hard sell. And, let’s face it, the further you are from that future event, the harder it is to “sell.” 

But arguably the problem runs deeper than the label(s) we affix to the concept of the ultimate goal. Let’s face it, financial freedom is a laudable, evergreen objective—but for most of us it’s not a short-term goal—and without a “how” to go with the “what,” it might not matter. 

In her post, Faith states that our current messaging is “…not working because that’s not how humans are wired. We are wired to survive and that drives the urges for happiness, the desire to live, to buy, to bucket-list, to binge-watch, to prime-delivery. We are not wired to plan for an unknown future with an unknown time frame and no magic 8-ball to what will even happen tomorrow much less 25+ years from now.”

To her credit, she put forth some suggestions, conversation starters of a sort—something that ostensibly might motivate people to “care”—things like:

• The Life You Want—Top 5 questions to help you take control of your life
• 3 Ways to Legally Pay Less in Taxes
• The One Debt That Pays YOU interest—401k loans and a few perfect reasons to tap into them

Now, as someone who spends a good part of his day crafting (what he thinks are) compelling headlines and (obsessively) tracking clicks, that approach has some allure. (I mean, who wouldn’t want to know how to legally pay less in taxes?) That said, it’s not clear to me how much of this kind of thing is already out there, though I imagine in a world increasingly reliant on TikTok, Instagram, Twitter and YouTube to communicate complex (and sometimes farcical) messages, it’s a burgeoning field—or should be. 

Indeed, the more I considered the subject, the more it occurred to me that the essence of some pretty compelling messages are already imbedded (obscured?) in most of today’s benefit communications. Wouldn’t you be intrigued by the following topics?

• How to get the free money you’re missing out on
• Turn $5 a month into $50,000
• You can get a pay increase without asking for it

There are some potential shortfalls, of course—there’s often a fine line between making complex things simpler and making them overly simplistic. But when all is said and done, to me, it’s not so much about simplifying our messages (though there’s that), but about getting people’s attention. But as I look at the bullets above, they strike me as short, near-term in focus, snappy, and ultimately action-oriented. Clickbait? Sure—but if you can get people’s attention, even for a minute, that’s an opportunity, a door-opener… a start… 

Of course, “starts” notwithstanding,[i] what matters isn’t just getting people’s attention, but motivating action—anything from a quick readiness assessment to taking steps to automatically increase their rate of contribution, or to make sure they are contributing at a rate sufficient to receive the full company match.

In sum, it’s one thing to get people’s attention—but then we have to keep it. 

- Nevin E. Adams, JD

[i] And thanks to automatic enrollment and qualified default investment alternatives (like target-date funds), millions of American workers have gotten a good start at saving and investing for retirement even if they don’t always appreciate it.

Regret Able

 A new survey once again highlighted a consistent regret among American workers. 

According to the survey by American Century Investments, they wish they had saved more for retirement. 

Now, only about a third shared that regret—but it was more than twice the number that had regrets about career, personal relationships, not doing enough to enjoy life—not to mention “not being a better person overall.”[i]

Now, we all have regrets about certain life decisions. There are regrets about that “Reply All” email that was perhaps a little too honest, the hours spent at work at the expense of family, perhaps the cessation of piano lessons, and even a (too) sedentary lifestyle and bad diet. Some we regret immediately—while some come only after the passage of time. Some we learn from—and vow never to repeat. And some—unfortunately—come too late to do anything but live with the consequences. And then there are those regrets—that could be remedied—but aren’t. 

Regrets about retirement savings tend to be in the latter category. People often talk about the retirement crisis in this country, but like a tropical storm still well out to sea, there are widely varying assessments as to just how big it is, and—to (continue to) borrow some hurricane terminology—when it will make “landfall,” and with what force. Most of the predictions are dire, of course—and while they often rely on arguably unreliable measures like uninformed levels of confidence (or lack thereof), self-reported financials and savings averages—it’s hard to escape a pervasive sense that as a nation we’re in for some rough weather, particularly in view of the objective data we do have—things like coverage statistics and retirement readiness projections based on actual participant data.

As we’ve certainly experienced anew over the past 18 months, life is full of uncertainty, and events and circumstances, as often as not, happen with little if any warning. Even though hurricanes are something you can see coming a long way off, there’s always the chance that they will peter out sooner than expected, that landfall will result in a dramatic shift in course and/or intensity, or that, as with some (like Katrina)—the most devastating impact is what happens afterward. In theory, at least, that provides time to prepare—but, as the recent advent of COVID and the response—sometimes you don’t have as much time as you think you have, want or will need.

Doubtless—and as the recent survey findings suggest—a lot of retirement plan participants are going to look back at their working lives as they near the threshold of retirement with some regrets. They’ll perhaps remember the admonitions about (and their good intentions to) saving sooner, saving more, and the importance of regular, prudent reallocations of investment portfolios (they may even remember reading about surveys expressing those regrets). Thankfully—and surely because of the hard work of advisors and plan sponsors—many will have heeded those warnings in time. But others, just as surely—and particularly those without access to a retirement plan at work—may not.

The end of our working lives inevitably happens for different people at different times, in different ways, and to those in different states of readiness for that “event.” But we all know that it’s coming—and those who put off preparing for it are likely destined for a retirement full of regret. And that, not just for them, but for all of us, is… regrettable.

- Nevin E. Adams, JD

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[i] In fairness, it’s entirely possible that they’ve been more attentive and/or successful in those life avenues, and thus regrets weren’t required.

The "Magic" of Compounding

Some numbers were put in front of the Senate Finance Committee last week—numbers that even the chairman of that powerful body called “jaw-dropping.”

The numbers were 51 million and $6.2 trillion—the former the potential number of new retirement savers, the latter a separate projection of the potential new retirement savings (over a 10-year period) that could result if two pieces of existing retirement legislation were implemented, specifically the combination of some key provisions of the Automatic IRA Act and the Encouraging Americans to Save Act.

Those projections—presented in testimony by American Retirement Association CEO Brian Graff—were the work (and rework) of many late (and early) hours by a number of individuals over a period of months.

Key Assumptions 

Now, predicting the behavior of human beings decades into the future may seem like the stuff of science fiction, but it can be parameterized. However, the key to a projection that aligns with reality likes in the assumptions. Here the key provisions (and assumptions applied) were that:

• All employers with 10 or more workers that don’t currently offer a plan do so.
• All those new plans offer automatic enrollment (no employer contribution for a new plan).
• Those new automatic enrollment plans start deferrals at 6%, and auto-escalate to 10%. 

Oh—and with regard to those new participants, a 20% opt-out rate was assumed in the first year, similar (though actually somewhat less, because we assumed that the new Saver’s Match would dampen the rate of opt-outs) than that experienced by the state-run programs like OregonSaves. And yes, that’s higher (about double) the rate experienced by 401(k) plans in the private sector with automatic enrollment.  

As for the Enhanced Saver’s Credit (let’s call it the Saver’s Match for clarity), we simply assumed that everyone eligible would get it (except, of course, for those that opted out), in the amount(s) provided in the (then proposed) legislation. We even factored in self-employed and “gig” workers, a still small, but growing element in the economy.

Why it Matters

We’ve long highlighted the issue with access to a retirement plan at work—“coverage”—alongside data that supports the fact that even modest income ($30,000/year to $50,000/year) workers are 12-15 times more likely to save for retirement via a workplace plan than on their own. While a growing number of states have embraced the notion of a “mandate” on the part of employers to provide payroll deduction to a state-run plan, extending that concept on a national level is a real game-changer in terms of providing that opportunity. 

Doing so combined with automatic enrollment (also a provision of most of the current state-run plans) helps workers get off to a good start, and providing a Saver’s Match seems likely to encourage most to stay with it—and perhaps, particularly among smaller employers, without requiring the financial impact of an employer contribution. 

Moreover, not only do the expanded levels of eligibility for the enhanced Saver’s Match mean that more individuals will be eligible, making it refundable means that more will be able to claim it—and, with so many more having access to retirement accounts, they will now have a retirement-oriented place in which to put it.

In our business, we often talk about the “magic” of compounding, and when retirement savers see how that early contribution can grow and build on itself, it does truly seem magical. In fact, no less a personage than Albert Einstein is reputed to have said that “Compound interest is the eighth wonder of the world.”[i]

Indeed, taken together, the compounding impact of these two sweeping proposals look to produce a retirement result worthy of that accolade—if they can make it into law.

- Nevin E. Adams, JD

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[i] He went on to say: “He who understands it, earns it; he who doesn’t, pays it,” but that’s a story for another day.