"Right" Minded

One of the most common—and consistent—inquiries I receive (via e-mail, anyway) is from readers looking for help in choosing a plan provider. I am always flattered by the request, and always try to do my best to point them to the resources we have on our site (our annual Defined Contribution Survey and the annual Recordkeeping Survey are quite popular).

Still, there is only so much help one can offer without a fuller understanding of the current needs of the program, as well as the goals and objectives set for the future. Furthermore, providers, like plan sponsors, have "personalities" and, in my experience, sometimes the chemistry that a good relationship needs to thrive just is not there, even when the plan's needs are reasonable and the provider's capabilities are top-notch.

Yes, picking the best provider for a retirement plan is one of the most important decisions a plan sponsor can make—both in terms of fulfilling their fiduciary obligation and in what might affectionately be called job sanity. That said, many plan sponsors really don’t have the time—or the expertise—to pick the best provider (much less monitor that performance), and so, the smart ones do what ERISA requires—they hire the expertise to pick (and monitor) the best provider. And that’s where the retirement plan adviser comes in.

The “Right” Adviser

However, in my experience, it’s no less challenging to find the “right” adviser/consultant than to find the right provider. In fact, IMHO, it’s harder to find that adviser. Why? Well, most of us have some idea as to the features/pricing we want/are willing to pay for from a provider, but how much is good counsel worth? And how do you know it's good counsel?

Here are seven things that I’ve told plan sponsors that they should know, and in some cases know before they start looking, before they engage an adviser’s services:

(1) Know what you want to accomplish with the adviser/why you want an adviser. Is this for a one-time consultation, or are you looking for an ongoing relationship?

(2) Know where the adviser will be. Do you care if they are geographically proximate, or is a phone call away close enough? How often will they visit? How often will they visit without charging?

(3) Know what the adviser has done for others. Get references—in fact, if you can get references first, and then call the advisers, so much the better.

(4) Know how the adviser is going to go about doing what they say they will do. Get that in writing—and hold them accountable.

(5) Know where the adviser stands on the issue of being a fiduciary to your plan. Know the size and strength of the organization that stands behind that commitment. Know that hiring an adviser who will be a fiduciary to your plan doesn’t diminish your responsibility as a fiduciary.

(6) Know what kind of background/expertise the adviser has. What kind of education, honors, and/or designation(s) do they have? How do they stay current on market and regulatory developments—and how will they keep YOU current?

(7) Know how much—and how—you will be asked to pay for the adviser. More importantly, know how much—and how—the adviser is paid for the services provided to your plan. Be sure that they aren’t compensated in a way that unduly influences (or could be seen to influence) their objectivity. If they won’t answer this question, no matter how good they seem to be, walk—no, run—away.

Of course, ultimately, the choice of the “right” adviser will be a combination of personal chemistry, professional acumen, relevant experience, and—perhaps the most element—trust.

—Nevin E. Adams, JD

P.S. I’m sure that, in the interests of focus and brevity, I have overlooked things. If so—or if you just want to tell me you agree—drop me a note at nevin.adams@assetinternational.com

Tranquility Base

While I am sure there was a period in my youth when I wanted to be a fireman, a cowboy, or maybe even a professional athlete, my earliest memories are of wanting to be an astronaut.

Never mind that my odds of becoming a professional athlete were considerably better than those of joining the nation’s elite group of astronauts. It was evident even to me early on that I lacked the athletic acumen for a career in sports—it took years for me to appreciate what would have been required for me to satisfy NASA’s requirements (and be able to rationalize that the “real” reason was that I was too tall).

It was a magical time for our nation’s space program. There was a plan, three separate programs (Mercury, Gemini, and Apollo) to help us get there, and a vision—as President John F. Kennedy said in May 1961, of “achieving the goal, before this decade is out, of landing a man on the Moon and returning him safely to the Earth.” There was also a sense of national urgency (the so-called “Space Race” with the Soviets, which was a lot less scary than the arms race), and, while the program was remarkably bereft of injury, the tragedy of the fire on Apollo 1 that killed three astronauts reminded us of the stakes involved.

And then, after years of watching Americans enter space, circle the planet, exit their craft while circling the planet (at unimaginable speeds), and then leave Earth’s orbit to touch the lunar sky, I can still remember the grainy black-and-white images of Neil Armstrong’s “one small step for man” flickering across the screen of my family’s small black-and-white television (replete with its aluminum foil-festooned rabbit ears) on that Sunday evening in 1969. An experience that was, in some form or fashion, replicated around the world that special July evening 40 years ago in a rare planetary unanimity of experience as we got that report of a successful landing at “Tranquility Base.”

Of course, it wasn’t all about developing “Tang,” magical space walks, and those incredible images of our astronauts bounding across the lunar landscape. It was about knowing where we wanted to be; putting together a detailed, comprehensive plan to get there; having any number of contingencies and backups “just in case”; the tenacity, dedication, and intellect to work around the inevitable problems that arise that you didn’t anticipate with those contingency plans (just watch “Apollo 13”); and—IMHO, the most critical element in the successful completion of any project—a deadline.

It doesn’t take much imagination to draw a correlation between the planning for a landing on the moon and a successful arrival in retirement (OK, so maybe it takes a little imagination). It requires a notion of what constitutes a successful arrival, an idea of the steps that will be required to get there, the tenacity and ingenuity to deal with the inevitable bumps along the way—and the specificity of a date certain to give some structure to those plans.

Students of history know that one of the contingency plans for the Apollo 11 mission was a presidential statement if those astronauts had crashed (they got pretty low on fuel before landing), or if they hadn’t been able to return to Earth (some engineer actually forgot to put a handle on the OUTSIDE of the lunar module door—and if they hadn’t noticed that and left the door open while they were on the surface, they might not have been able to get back inside the LEM). Fortunately, those contingencies are now simply interesting historical anecdotes. Still, it’s worth recalling that the ultimate mission was not only to get men TO the moon, but to return them safely home.

Similarly, as we ponder the accomplishments and planning that helped our nation put men on the moon, IMHO, it’s worth remembering that our “mission” is not only to get tomorrow’s retirees safely to retirement, but to position them and their finances to carry them safely THROUGH retirement…to their “tranquility base.”

- Nevin E. Adams, JD

The "Burden" of Proof

Recently the 7th Circuit responded to requests that it reconsider its opinion in the revenue-sharing/”excessive fee” case of Hecker v. Deere (see “7th Circuit Panel Limits Ruling’s 404(c) Effects”). The case, of course, was one of the earliest in the litany of those cases to be filed in 2006, and the only one (thus far) to reach the appellate level.

To date, the courts have, with little exception, dispensed with these cases harshly. Not that they aren’t entitled to do so, of course, and not that this particular generation of filings isn’t deserving of such treatment, IMHO. From the beginning, the plans targeted seemed better-designed to fill the pockets of plaintiffs’ counsel, if for no other reason than large employers frequently figure that it’s cheaper to settle than to fight (see “IMHO: Fighting Words”). That said, the courts—including the 7th Circuit—seem to have a more “generous” view of what it takes to earn the protections of ERISA 404(c) than most ERISA lawyers I know.

I was no less confused by the 7th Circuit’s response to the request for a rehearing (see “7th Circuit Panel Limits Ruling’s 404(c) Effects” ). Basically, the court said that there had been no judicial call for such reconsideration, and that, in fact, the judges who made the original determination had voted to deny the petition for reconsideration. However, the judges apparently felt the need to respond directly to some of the charges made in the amicus curiae briefs filed in support of the motion—and, perhaps more significantly, it took pains to point out that its ruling in the case, and on the facts presented, shouldn’t be applied too broadly. And that, of course, seems to have been a source of solace and comfort to the folks who have brought us these revenue-sharing lawsuits, who have reason to feel “down” (based on the limited adjudications to date), but are apparently not “out.”

Now, I didn’t mind that the courts have held there is no fiduciary duty to disclose fees to participants (there isn’t), nor the determination that plan sponsors need not scour the marketplace to find the cheapest investment choices (cheapest might not even be “reasonable”). But, having spent some reasonable part of my adult life trying to understand and help others understand the scope, implications of, and limitations to ERISA 404(c), I’ve generally been puzzled at how liberally the courts have been willing to apply its protections, certainly in contrast to the position espoused by the Department of Labor (which, I should add, has been remarkably consistent in its voice on the subject).

That said, in its response, the 7th Circuit spoke to the issue raised in this space previously—and acknowledged in the petitions of the DoL and plaintiffs for a rehearing (see “IMHO: ‘Second’ Opinion”):

“The Secretary also fears that our opinion could be read as a sweeping statement that any Plan fiduciary can insulate itself from liability by the simple expedient of including a very large number of investment alternatives in its portfolio and then shifting to the participants the responsibility for choosing among them. She is right to criticize such a strategy," the court asserted. “It could result in the inclusion of many investment alternatives that a responsible fiduciary should exclude. It also would place an unreasonable burden on unsophisticated plan participants who do not have the resources to pre-screen investment alternatives. The panel’s opinion, however, was not intended to give a green light to such ‘obvious, even reckless, imprudence in the selection of investments’ (as the Secretary puts it in her brief). Instead, the opinion was tethered closely to the facts before the court.”

It is that last sentence that now gives comfort to those pursuing these actions in other venues (venues that might have been inclined to toss those claims, citing the 7th Circuit’s decision), and one that, for the moment anyway, may assuage the DoL’s concerns.

But as I read the original decision, I saw a causal connection created by the court that suggested that there was no cause of action because the plan was protected under the shield of ERISA 404(c), a shield the court felt the plan was entitled to in no small part because the plan had provided the array of options outlined.

I, for one, would have been perfectly content if the court had held that it wasn’t sufficient to establish a fiduciary breach claim by just stating that the plan offered retail-priced mutual funds (even from a single fund family), particularly when that was offered alongside a brokerage window that provided participants access to investments beyond that core menu. One can argue that a plan the size of Deere’s could have negotiated a better deal for its participants, or that it perhaps would have been better-served to offer a more diversified menu than a single set of proprietary funds—but I think the court would have been comfortably within its purview to say that you need more than a simple insinuation that that arrangement is a violation on its face to bring a case in federal court.

What puzzled me then—and puzzles me still—is that the court apparently felt it necessary to invoke the safe harbor protections of ERISA 404(c) to, effectively, justify its conclusion. For, while there are any number of casual 401(k) plan adviser/consultants out there who will tell a plan sponsor that all they have to do to earn those protections is to offer a lot of funds, let participants transfer between those funds at least quarterly, give those participants prospectuses on those funds—oh, and file their intent to function as a 404(c) plan—there’s more to it than that, and we trust that the courts are as aware of that as any ERISA prudent expert.

Personally, I would have preferred that the 7th Circuit restated its rationale—clarify that, while they chose to invoke 404(c ), it wasn’t necessary to do so; clarify that the plaintiffs simply hadn’t established a case sufficient to go to trial.

And reminded us all that, while the standards ERISA fiduciaries are held to are demanding, so are the standards for asserting that that duty hasn’t been fulfilled.

—Nevin E. Adams, JD

See also:

Appellate Court Backs Deere Case Dismissal

IMHO: “Second” Opinion

IMHO: “Winning” Ways?

“Common” Sensitivities

Last week the Congress was voting on an issue on which I have a strong opinion, and, while I did not vote for my congressman—and will likely never vote for him (unless, of course, he undergoes some kind of philosophical transformation)—I e-mailed him to express my opinion. And then I called his office to express the same opinion (not only because I feel so strongly about the issue, but because in a day of templated e-mail solicitations, I understand that a phone call probably has a greater impact).

As I hung up the phone, my daughter, who was sitting in the room with me at the time, looked at me quizzically—so I explained to her what I had done, and the issue about which I had called. “Really?” she said—with an air of awe and wonder. And then, after a pause she said, “So, does that work?”

I’ve given a lot of thought to that question since then. Of course, we live in a Republic, not a Democracy, and for the very most part, we don’t get to vote on all the individual issues brought before our legislative bodies. Instead, we vote for the individuals that we hope will represent our perspectives on those matters. Now, sometimes we get the individuals that represent our neighbor’s perspectives, rather than our own—but, with all its imperfections, that’s the system that has stood this nation well through all manner of adversities and prosperity.

Still, as Thomas Paine wrote in 1776 in Common Sense, “There is something exceedingly ridiculous in the composition of monarchy; it first excludes a man from the means of information, yet empowers him to act in cases where the highest judgment is required."

Now, substitute the word “politician” or “representative” for “monarchy,” and you have the gist of the problem when you have a political “class”—one in which your elected representatives spend more time with other legislators than with people like you or me. That’s why the power of lobbyists can be so insidious, and why, IMHO, those who have been nothing but politicians for decades can become disassociated from the concerns of their constituents. It’s why, IMHO, so many seem to spend their time and energy worrying more about the interests of the people who help them get reelected, rather than the interests of those who actually reelect them.

But, to my daughter’s question—does it work? Well, so far as I can tell, my one call to one congressman the day before a critical vote had no impact at all, on this vote, anyway. That doesn’t mean that my call was wasted, of course. That said, over time, I’ve had any number of individuals tell me that they didn’t have the time, that they didn’t believe it would make a difference, or worse, that they were afraid that doing so would put them on some kind of “list.”

But as we commemorate the anniversary of our nation’s Declaration of Independence this week, we should all remember that we can only expect our interests – whether it be fee disclosure, participant advice, or issues of broader concern - to be represented if we are willing to make the effort to express them. And then, of course, hope that our elected representatives continue to realize that our representative form of government works only when it is representative.

—Nevin E. Adams, JD

Editor’s Note: If you haven’t read Common Sense—or haven’t read it in a while—check it out HERE

You should also check out the Declaration of Independence HERE

Design Lines

It’s now been nearly three weeks since our Plan Designs conference in Chicago and, once again, I got so many interesting ideas, so much good information—well, I’m still making notes from my notes.

For those who weren’t able to participate this year, here’s a sampling—and here’s hoping you will be able to join us in 2010!


Participants who are automatically enrolled are even more inert than those who took the time to fill out the form.

92% of participants defaulted in at a 6% deferral do nothing. 4% actually increase that deferral rate.

The Obama Administration does not want to mandate a government retirement solution—but it might provide one.

Concerns about cost and control that target-date fund managers wield are generating a new interest in customized solutions.

The key to successful retirement savings is not how you invest, but how much you save.

Even if a plan has a plan adviser that is a fiduciary, the plan sponsor is still a fiduciary.

Most plans don’t comply with ERISA 404(c). Plan fiduciaries are responsible for every participant decision in plans that don’t comply with ERISA 404(c).

Hiring a co-fiduciary doesn’t make you an ex-fiduciary.

“Because it’s the one my recordkeeper offers” is not a good reason to pick a target-date fund.

Given a chance to save via a workplace retirement plan, most people do. Without a workplace retirement plan, most people don’t.

Nobody knows how much “reasonable” is.

Innovative doesn’t mean nobody’s ever thought about it, or that nobody’s ever done it.

Wherever you default participants, come back in a year, come back in five years—they’ll still be “there.” Make sure it’s a good place.

Nobody ever expects a 40% drop in the market.

You want to have an investment policy in place before you need to have an investment policy in place.

Don’t put it in writing unless you mean it.

Most participants can’t even remember their PIN.

Things participants may have to “unlearn”: “Don’t put all your eggs in one basket” (target-date funds).

Things participants may have to “unlearn,” part two: “The advantages of tax-deferred savings” (Roth 401(k)).

The trust will come back when the market comes back (see”View” Points) .

The same provider can charge different fees to plans that aren’t all that different.

Disclosure isn’t the same thing as clarity.

Automatic enrollment (still) isn’t for everyone.

If your company has laid off a lot of people, you could have triggered a partial plan termination.

“Staying the course” is only a viable strategy if you’re on the right track to begin with.

It could get worse before it gets worse.

If you’re automatically enrolling participants, what is your match encouraging them to do?

If you can’t remember the last time you did a provider search, you’re probably overdue.

In health care, the participant spends the sponsor's money. In the 401(k) system, the sponsor spends the participant's money.

If our schools would devote half as much time educating our kids on finances as they do warning them (again and again) about drugs and s.ex, we’d all be better off.

It’s not what you’re doing wrong; it’s what you’re not doing that’s wrong.


—Nevin E. Adams, JD

You can read the musings from last year’s conference (still strikingly relevant, if I do say so myself): “Swimming” Pool

'Value' Judgments

Way before we had “reality” shows where we could watch people make fools of themselves in prime time, there was “Let’s Make a Deal.” The concept was simple – get contestants to show up in odd costumes, and give them a chance to trade in something (of no value) that they brought with them for something of undetermined value that was hidden in a box, or behind a curtain. That first trade was easy – where things got more interesting was once the contestant had obtained something of value – and was then given a chance to trade it for something that might be of higher value – or not. Sometimes it worked out – and, of course – sometimes the contestant got “zonked.”

IMHO, there’s something of that going on in the current debate over workplace benefits. I think you’d be hard-pressed to find anyone who doesn’t think that Americans should have access to basic needs such as health care, or a secure (if not comfortable) retirement. Certainly we’re all striving to help ensure the latter, and we all know that the former (or, more precisely, the lack thereof) can have a huge impact on those efforts.

The question that, IMHO, is looming just over the horizon is—how much are you willing to give up to make that happen?

Let’s start with health care. On the campaign trail, then-candidate Barack Obama said repeatedly that, if you liked the health care you currently had, you’d get to keep it—oh, and it would cost less. Moreover, he was harshly critical of then-candidate John McCain’s proposal that health-care benefits be taxed, albeit offset by a tax credit.

However, in recent days, President Obama has been willing to reconsider the notion of taxing those workplace benefits (not his preference, but keeping his options open) in the interest of securing health-care reform. Now, with several competing notions of health-care reform emerging, we don’t yet know what the final result will be, but I think that workers who currently enjoy those workplace benefits tax-free could see some—or all—of that benefit disappear—albeit ostensibly for the greater good of ensuring that everyone has access to health care. How will workers feel about that? Will they feel that the value of broadening coverage is worth giving up that benefit? What if they have to pay more—and they get “less”?

Retirement Plans

Now, on retirement plans, the current Administration proposal—the automatic workplace IRA—purports to leave our current private-sector solutions in place. Indeed, officials go out of their way to emphasize that intent, and with more than half the nation’s workers currently without a workplace retirement plan, we clearly need something to fill that gap. On the other hand, the drumbeat that workers can’t (or won’t) save enough to provide an adequate retirement continues loud and strong. Some voices have already taken to task the “disproportionate” benefits of the 401(k) (that is, a plan that allows you to defer taxes is most prized by workers who actually pay taxes)-—while others are, for the moment, anyway, content to simply challenge its vitality.

The stridency of these arguments has, IMHO, strengthened in the aftermath of the extraordinary market decline, and I’m reasonably sure that the spotlight being cast on target-date offerings (which had, until recently, been a remarkably strong counter-point to the claim that participants were incapable of, and/or unwilling to, make solid investment choices) will do nothing to quell
those concerns. Meanwhile, the widely publicized announcements about 401(k) match suspensions are, for some, a reminder of just how tenuous that commitment can be.

Indeed, once you take away the promise of a defined benefit pension (admittedly an elusive fantasy at best for most in the private sector) and undermine the viability of the 401(k) as an effective retirement income generator, those looking to ensure broad-based retirement income coverage are left with little in the way of resources beyond Social Security and personal savings to fund those retirement paychecks. The former has well-documented fiscal challenges of its own, of course, and the latter—well, let’s just say that if you aren’t saving in a 401(k) or like vehicle these days, you probably aren’t saving.

All of which is leading what seems to be a growing number to suggest that the best solution to the challenge of ensuring adequate retirement income for all lies in a system that doesn’t depend on the responsibility and prudence of individuals, but rather one that, like Social Security, is the result of a government mandate. One that is based on a premise where the financial resources of the nation’s workers are “pooled” and ultimately redistributed, ostensibly in a way that provides a more certain result for all, but one that may well be distributed disproportionately to one’s individual contribution. Said another way, like Social Security, one in which what you put in and what you eventually get back are, shall we say, “unrelated.”

Now, as I said earlier, I think many—perhaps most—would agree with the proposition that we should look for solutions that provide the means for adequate retirement income for all. The question in my mind is—how much would you be willing to give up to provide that? Would you be willing to pay higher FICA taxes to prop up the current system, to give up the tax benefits of your 401(k) to help fund a broader initiative? Indeed, would you be willing to give up your 401(k)? Would you be willing to “make a deal?”

These are questions that we may be asked to answer in the coming months, though they may not be presented that plainly. But, IMHO, the answers – the decision to keep what you already have, or to take a chance on “what's behind door #2” - will determine not only the future of the 401(k), but that of the American retiree as well.

- Nevin E. Adams, JD

"View" Points

We hadn’t gotten very far into the agenda of our Plan Designs conference last week when a plan sponsor asked the question that, IMHO, is on a lot of people’s minds these days. And while I don’t remember her exact words, the essence was this: “What can you say to participants who no longer trust their 401(k)?”

As we explored the question, we learned that her firm matched dollar-for-dollar up to 5%—a VERY generous match (particularly these days)—and yet, despite that, she said she has participants who are dropping out of the 401(k)—and/or talking about dropping out of the 401(k)—with an eye toward simply investing in a bank CD (not the music kind).

Now, before you ask, yes, her plan uses a financial adviser—and, yes, that financial adviser and her provider, and, so far as I could tell, she had worked hard to communicate all the “proper” messages. Her plan participants had been reminded about market cycles, reassured about the ability to get a “bargain” with their new contributions, comforted with the message to “stay the course”, and, yes—buttressed with a reminder about the buffer of the company match. All of which are, of course, legitimate points—and which, by the way, this plan sponsor heard again from those on the panel and those in the audience.

There were also a few “easy” off-line answers to her dilemma: If you can’t trust the adviser, get another one; if you’re not happy with the fund offerings your provider has put forth, change them (or change the provider). “Solutions” that, to my ears anyway, were more or less a “shoot the messenger” approach. Besides, so far as I could ascertain, that wasn’t really the problem here.

The problem—and one that wasn’t addressed, IMHO—is the question that has to be answered before a participant (or plan sponsor) can draw comfort from any of those rationalizations: How can I trust YOU to be telling me the truth? More to the point, why should I believe you?

And, as I listened to the various attempts of the panel (and the audience) to assuage this plan sponsor’s concerns, I was struck by how truly “pat” they all sounded—and, to someone who wasn’t prepared to just blindly suspend disbelief, how hollow. One well-intentioned adviser, after the session and, to his credit, in private, said, “After the markets come back, the trust will, too.”

I’m not so sure.

Like many, perhaps most, in that auditorium, I remain confident that, left to their own devices, the markets and economy will rebound (and that, not left alone, they will still rebound, but at a slower pace). That said, the voices of reassurance in the auditorium didn’t really seem to “get” the concerns expressed—and, to my ears, anyway—there was even a hint of condescension.

Reading between the lines of the question, I felt that I wasn’t just hearing a participant question being relayed. Indeed, at a time when much of what we have taken for granted has instead been “taken” from us (and, like it or not, that’s how it feels to many), I think many plan sponsors are also revisiting their trust; trust they have long had in reasonable (and disclosed) fees for services rendered, in sensible asset allocation models, in the ostensibly unbiased counsel provided to them by those they hire….

In the days since, as I’ve thought back to that session, I was reminded that human beings are willing to listen to people they trust—friends, family, co-workers—for counsel on their approach to many things, but you rarely trust someone, for long anyway, who doesn’t seem to understand—and appreciate—YOUR point of view.

—Nevin E. Adams, JD

Clock Work

In recent weeks, those favoring a government solution to the issue of retirement security/savings have championed the soundness of Social Security. Despite (or perhaps because of) a recent Trustees report that revealed that the markets had taken a toll on Social Security’s finances, Alicia Munnell, director of the Center for Retirement Research, noted, “The system has enough money to pay full benefits for decades, although for a few years less than previously reported because of the financial/economic crisis.” And so it has.

The same thing is true of the nation’s private pension plan insurer, the Pension Benefit Guaranty Corporation (PBGC), and in fact that point was made repeatedly by Charles Millard, the former director of that agency, as he was repeatedly questioned about the wisdom of championing a new, although hardly radical, IMHO, asset allocation shift that would have resulted in an asset allocation of 45% in fixed-income, 45% in equities, and 10% to alternative investment classes. The agency's previous policy set an equity investment target of just 15-25%, although the actual level of equity investments was 28% at the end of fiscal 2007, and 30% at April 30 (see “PBGC Funding Gap Ballooning as Plan Terminations Increase”).

That shift has reportedly been halted, at least for the moment, ostensibly because of questions about contacts that Millard had with money managers hired to implement the policies (see “Solis Asks PBGC To Halt New Investment Strategy”), but IMHO, the real “problem” was its move away from a predominantly fixed-income-oriented portfolio.

So, here we have two enormous bodies of capital—both run by the federal government; both tasked with making periodic payments stretching over decades; each with what, IMHO, seems to be an extraordinary reliance on fixed-income investments.

Now, don’t get me wrong—I completely understand the importance of preserving capital (particularly these days), and I’m hugely appreciative of any expression of fiscal restraint on the behalf of the federal government (particularly these days).

Still, despite the acknowledged purpose of these enormous pools of capital—to provide retired workers with a reliable stream of income—most of that “purpose” is still decades away. That’s the good news. On the other hand, we know that both systems, left unchanged, will not have enough money to fulfill the obligations they now have on their plate (much less those that have yet to manifest themselves), based on the current projections.

And yet, with lots of time to go, and huge obligations to be met, it looks as though the federal government is, effectively, trying to run out the clock.

That, of course, is a perfectly viable strategy if the game is almost over, or if you are sitting on a very comfortable lead. On the other hand, the sports world is full of situations where a team went into a “stall” too early, only to lose that lead—and the game.

It would be a mistake of mythic proportion to try to invest our way out of the deficits currently confronting these systems, any more than an individual participant should aspire to compensate for a career of under-saving by betting everything on risky investments.

However, I’m having a hard time understanding how the government’s unwillingness to adopt even the most modest asset allocation reforms will do anything to mitigate the situation—and may well be exacerbating the problem. And when that clock runs out, we’ll all lose.

—Nevin E. Adams, JD

End "Points"

Several years back, after a day of meetings in Manhattan, I caught the train home. I wound up on one of those “milk run” trains that makes every stop along the way—and, trust me, there are a lot of stops between Manhattan and “home.” To make a long story short, I decided to take a short nap…and woke up just as the train was pulling away from my station.

It wasn’t a big “miss,” mind you. But that 15-minute nap cost me about two hours of time and a lot of aggravation…and, of course, it could have been a lot worse.

It seems that many things long taken for granted in our business are today being subjected to a whole new level of scrutiny, including the very efficacy of the 401(k). The most recent “target” is, of course, target-date funds—and the examiners no less than the U.S. Senate, the Securities and Exchange Commission, and the Department of Labor (see More Details Given on EBSA/SEC Hearing on Target-dates , Senate Committee Takes Aim at Target-Dates) .

That examination is not necessarily a bad thing, of course. The reality is that these offerings have quickly become a de facto investment solution for the nation’s prime retirement savings alternative, and in the past couple of years received nothing less than the official sanction of the DoL itself (at the instigation of Congress via the Pension Protection Act). That said, these solutions have benefited hugely from their simplicity. What is sold is the concept: professional money management, monitored and rebalanced over time. And to some extent, that is also what is bought.

What’s Being Bought

However, IMHO, there is something else that is being bought, if only implicitly—the ability to not have to worry about saving for retirement(1).

With target-date solutions, and more specifically with target-date solutions as part of an automatic-enrollment strategy, we’ve been able to set aside many of the messages we once viewed as essential to participant/investor education. We no longer have to teach participants about the importance of asset allocation, the wisdom of “not putting all your eggs in one basket” (quite the contrary, in fact), nor the need to keep an eye on your investments and to regularly rebalance. The message today is, tell us your birth date and “we’ll take care of all that.” And so we have.

There are two problems with that approach as I see it. The first is one of message—I think we may well have given a fair number of participants a message, if only subliminally, that they no longer need to worry about their retirement savings because we’ve attended to their retirement investing(2). That, of course, can be easily remedied—an effort that will doubtless be encouraged by the sustained market downturn and its impact on investors of all kinds. Still, for many, I’m sure the recent downturn has left them feeling the way I did as I watched the train pull away from my station.

The second problem is perhaps more insidious—and it is that “problem” that I suspect regulators will be trying to deal with next month. It is quite simply that, at the moment, we have lots of target-date funds on the market with nearly identical names—but very different philosophies. And, like it or not, in an age where we’re selling “don’t worry about it”— somebody has to.

Personally and professionally, I would hate to see us “fix” the problem by complicating the simplicity of a target-date choice. On the other hand, how can we continue to hold out a dozen different versions of the “right” asset allocation mix for a particular point in time without doing a better job of articulating that those differences exist, and explaining what those differences are?

What’s a Target-Date?

I’d start by explaining “target-date.” Once upon a time, the target-date was widely understood as being your retirement date, but more specifically, it was the date on which you would stop accumulating money for retirement and start drawing it down; and, yes, in most cases that was focused on the year in which the investor turned 65. Of course, these days, the definition of retirement is less precise; it’s not always 65, for one thing, and a growing number may leave a full-time career for a while and renter the workforce a couple of years later. Those kinds of changes, if not always in the control of the individual participant, are at least things that he or she is in a position to be aware of.

But for any number of target-date solution providers, the target-date in their fund family name is only a mile marker along the way, rather than the destination itself. They have developed strategies that ostensibly take the participant investor not only beyond that retirement date, but, in some cases, to the date upon which they leave this mortal coil.

Now, there’s nothing wrong with that as a strategy if the participant-investor understands that and appreciates what that means. On the other hand, if they think—as I am sure many do—that the target-date is the end, the point at which they are “done”— well, they could well wind up, as some surely have, being taken beyond their intended station—with no easy way to get back.

—Nevin E. Adams, JD

(1)I realize as well as anyone that you don’t invest your way to retirement security. But we also know that most participants tend to concentrate on the things they can’t influence (picking investment funds, market trends, the availability of a company match) rather than their rate of saving—ironically, the one thing that they can, subject to certain economic realities, control.

(2) While automatic-enrollment programs are clearly an effective means of getting workers to save for retirement, I’ve worried in this column previously that it might also insulate them from these issues (see IMHO: “Expert” Opinions).

College 'Bound'

In just a couple of months, I will find myself in the unenviable financial position of having two children in college at the same time.

Now, if you have put—or helped put—your children through college in recent years, you’ll have an appreciation for the impact of that statement. If your kids are younger—or if kids are not yet part of your household budget—well, let me just say you don’t have nearly as much time to get ready as you think you do.

First off, you don’t really know how much it’s going to cost. There’s the whole private-versus-public decision (the costs of the latter will be heavily influenced by your current state of residence), and even that decision can be driven by the field of study your graduate chooses to undertake. Each school has different policies (and costs) about things like meal plans, student vehicles, and even how the dorms are furnished.

But the worst of the variables is the sheer annual increase in tuition. My eldest, who will be a senior in the fall, will be presented (well, technically, I will be presented) with a tuition bill that is roughly 20% higher than the one she got just a couple of years ago. Talk about your moving targets!

Now, I said the worst of the variables was the increase in tuition, but a close second has to be the bite the market has taken from the money we had set aside in their 529 college savings programs (see my 2003 column on the experience, “IMHO: College ‘Education’”). At one point, I had hoped that those investments—in target-date funds before target-dates were “cool”—would grow enough to make up for some of our late start in saving for college (braces first, you know?). Now—well, you know what’s happened there. Despite that, I’m proud to say that the family CFO (and that’s not me) has figured out ways to increase our 529 savings without dipping into the retirement fund(s).

Savings Parallels

Still, as we’ve spent the past couple of months trying to figure out how we were going to pay for whatever college daughter No. 2 chose (and not a little time trying to prepare her for a financial fallback, just in case), I’ve seen any number of parallels between saving for college and saving for retirement.

There’s the uncertainty of the amount, the unknown impact of inflation and/or higher prices and, of course, the market’s “contribution.” As with retirement, there is a “target date” of sorts—one that can, at least in theory, be postponed, and one can certainly choose to adjust one’s choice(s) to accommodate financial realities as that date draws nigh. And, as with retirement, a lot of uncertain nights between the planning and the actualization of the event itself.

As it turns out, my two daughters, through their hard work and effort (spurred by their mother’s constant pressure to complete the applications and essays, and doubtless aided by their father’s gene pool contribution) have both managed to obtain academic scholarships that have made it possible for them to attend colleges that would, in all likelihood, otherwise have been beyond our means.

Ultimately, while we had done the right things, the right way, we had perhaps not done enough, or done the right things the right way soon enough. And while our daughters would have been able to go to college—and good colleges—regardless, as a father, I’m thrilled that they’ve been able to pursue this education at the schools they chose. Still, with one more at home to clear that hurdle (just two years hence), it’s been something of a financial wake-up call, a real college “education.”

Many retirement savers—including this one—may well find themselves in the same boat one day. Having done the right things the right way(s) for a long time, they could nonetheless one day find themselves coming up short due to any number of circumstances beyond their immediate control—and some choices that aren’t. Ask any parent; time has a way of slipping away from us, and tomorrow is always closer than it seems.

—Nevin E. Adams, JD

Poll Positions

There was an intriguing survey published last week, but one that, IMHO, generates as many questions as answers.

The online survey (accurately, if somewhat inelegantly, titled “Investors’ Beliefs about the Role of Target-Date Funds in Retirement Planning”—see Workers Might Have Wrong Idea about Target-Date Funds) captured the sense of 251 respondents, most (55%) of whom were earning less than $50,000/year, but many (75%) of whom were saving for retirement. A full third were age 55 or older, and none was younger than 25. Consequently, while we know nothing about how they are saving, or the size of the programs in which they participate, one might well expect that they have at least a passing familiarity with one of the most popular and powerful 401(k) investment tools—target-date funds.

Not so. Only 16% said they had even heard of target-date funds prior to reading the description in the survey, and apparently even among those, 63% weren’t able to explain the concept. From the response(s) shared (and there weren’t many), it seems that they “got” the date part, but tended to associate that with a maturation of that investment —worse, that on that date, a certain guarantee would be fulfilled.

The survey participants were shown a composite description of target-date funds, drawn from “the collateral of three leading providers,” and then were asked if target-dates promise anything. Presumably at least somewhat influenced by those provider descriptions(1), over half (61%) said yes. According to the survey’s authors, when asked what these offerings promised, 69% also got that wrong. Again, the response sampling provided was scant, but suggested that the individuals felt that the funds promised a certain level of financial security—despite market downturns.

That said, in other responses, most (62%) did NOT agree that the funds promised a guaranteed return, nor that those investments would grow faster than other investments (64.5%). A solid majority refused to believe that you would be able to save less in a target-date fund and still meet your retirement goals (70%), nor were they fooled into thinking that there was little or no chance that you would lose money before (76.9%) or after (76.1%) the target-date.

On the other hand, the flip side of those percentages—albeit a distinct minority of the total group—concurred (at least somewhat) with those errant propositions. And that, of course, is a cause for concern, if only because so many participants these days are choosing—or being defaulted into choosing—those target-date solutions(2).

Ultimately, however, as I looked over the survey results, I had to wonder: Were the respondents participants in a plan that offered a target-date option? Had they made, or been defaulted into, one of those options? Had they been ill-served by that decision? Do they think they have been ill-served?

Regardless, this survey, like all too many others, paints a picture of participant savers who doubtless need, and probably want, the kind of professional investment assistance that a target-date solution surely can provide. However, it also reveals a group of participant investors who are just ill-informed enough to fall prey to the bad counsel of unscrupulous advisers or to be disadvantaged by the indiscretions of inattentive plan fiduciaries.

We don’t need a survey to point that out to us, of course. But it doesn’t hurt to be reminded.

—Nevin E. Adams, JD


1 The excerpts, in case you were wondering, were:

“Take the guess work out of investing for retirement. Just decide when you want to retire, and we’ll pick the fund that’s the closest fit. A professional fund manager will keep that fund’s investments on target.”

“A target-date fund is a diversified portfolio of funds that offers all the benefits of asset allocation and active management. Just select your age, and we’ll do the rest.”

“You can get closer to achieving your retirement goals, with a little help from target-date funds.”

“We do the work. You do the retiring.”

2 Not that, IMHO, a lack of participant understanding or appreciation renders these investments inappropriate, certainly since most participants in the survey sampling seemed to understand the boundaries, even if they couldn’t (to the author’s satisfaction, anyway) articulate them.

Survival Instincts

Several years ago, I bought my Dad—one of the world’s most proficient worriers—a copy of the “Worst Case Scenario Survival Handbook.” I did it tongue-in-cheek, of course. After all, how many of us really need to know how to escape from a mountain lion, how to take a punch, or how to land a plane? Not that there aren’t times when that knowledge might come in handy, but let’s face it—the “worst” case rarely happens. On the other hand, if you’re prepared for the worst case, you’re generally better prepared to deal with the inevitable bumps and potholes along life’s road (in my Dad’s case, I worried only that I would provide him with NEW things to worry about…).

Lacking a politician’s motivations, I am disinclined to describe the events of the past several months as “worst case,” though there is no disputing that we are all working our way through a rough period. As a nation we have been in—and come through—rough periods before. Despite that, human beings seem inclined to see travails of the present as something new and different, unique and unprecedented. Perhaps we simply want to believe that we live in extraordinary times, though IMHO some are simply enamored of using the crisis of the moment to sell newspapers (or “solutions”). Regardless, I have always found those characterizations to be simplistic at best, and frequently born of an ignorance of history and economic cycles. On the other hand, once the crisis passes—and it always passes—then the voices of reason return, and we learn once again that history’s lessons were there all along.

In normal times, the market’s tumultuous path, a shaky economic underpinning, and looming budget deficits would doubtless converge to forestall any significant change in the status quo of workplace benefit programs. Changes in workforce benefits have traditionally been slow to come on line, reflecting the sensitivity of workers and employers alike to the delicate balance between cost and value, not to mention “promise” and practicality.

But these are not normal times, and, if rhetoric becomes reality, change could well be the order of the day, with the potential for seismic shifts in the responsibility, costs, and characteristics of benefits long associated with today’s workplace. Here, IMHO, are some things to keep an eye on:

The Silver Tsunami

Just over a year ago, the “moment” a generation of plan sponsors had been bracing for arrived, as Kathleen Casey-Kirschling, the nation's first Baby Boomer, became the first of her generation to receive a Social Security retirement benefit. Casey-Kirschling, who filed for benefits at the age of 62, was hardly a “typical” retiree, since she enjoyed coverage both from a defined benefit and defined contribution plan. Over the next two decades, nearly 80 million Americans will become eligible for Social Security retirement benefits, more than 10,000 per day on average, according to the Social Security Administration.

What that means, of course, is that the “pig in the python” imagery long associated with the retirement of the Baby Boomers is finally coming to fruition, calling into question the adequacy of private- and public-sector retirement solutions, as well the financial viability of Social Security itself. Even more so, this “sandwich generation” is increasingly finding itself pinched between calls to support both its parents and its children. It remains to be seen how we as a nation will respond—but the last time things reached a crisis level (1983), withholding taxes were hiked, “normal” retirement ages were pushed back (albeit gradually), and more of these “benefits” were subjected to taxation.

Pension Penchants

While the private sector has largely abandoned the defined benefit pension model (certainly as an ongoing concern), the public sector has embraced its pensions with a renewed vigor. Of course, that “split”—between a private sector that does not have a pension plan and a public sector that does (at least partially financed by taxes on that private sector)—sets the stage for a potential conflict down the road, a conflict that will only be exacerbated by headlines about looming pension funding shortfalls that could impose a higher obligation on taxpayers.

Return of Inflation

Regardless how you feel about the massive amounts of government spending proposed in recent weeks, it is hard to imagine that there would not be serious long-term ramifications on the inflation front. Some are old enough to remember inflation’s bite, the toll it extracts on living expenses. If inflation were to return, and perhaps return with a vengeance, that could affect interest rates, cost-of-living adjustments, pension funding ratios, and how far those retirement dollars will go.

Target Practices

It now seems hard to believe that, just two years ago some target-date fund providers were being accused of being too “traditional” in the construction of their glide paths. Certainly retirement plan investors who had been too conservative in their rate of savings deferrals appreciated the boost in projected accumulations that those equity-laden 2010 funds purported to deliver. Now, of course, things are seen through a different prism, though the risk of running out of money looms large—perhaps larger—still.

Timing, too, has dealt a potentially cruel hand to participants just ushered into a new generation of QDIA-compliant default designs just when that diversification might seem to work against them (at least in the short run). While the current tumult seems unlikely to do much more than temporarily stem the tide in favor of these options, it will surely give plan sponsors pause—and perhaps lead to a renewed appreciation of the very real differences in philosophy that underlie these glide path designs.

Retirement Income

Much of the focus of the past generation of retirement savings has been about accumulating enough. Plan sponsors had little motivation to think beyond a participant’s employment tenure (indeed, historically, there were some fairly significant “motivations” not to do so), and providers and advisers seemed content either to count on the strength of their service/brand to retain those assets, or to accept that traditional retirement income offerings, notably annuities, already existed.

Things have changed, of course. Rates of asset retention have generally not kept pace with expectations, annuities are frequently disparaged by participants (for reasons they are not always able to articulate), and plan sponsors are increasingly concerned that voluntary savings patterns won’t provide “enough” for retirement. Enter a new generation of retirement income solutions, increasingly “in plan,” or at least attached to the plan, which not only make it easier for participants, but also for plan sponsors to play a productive role in their selection.

Production and portability issues remain, of course. Retirement income is a sensitive subject, and determining the best vehicle to efficiently and effectively deliver it can be a complicated undertaking, fraught with new risks (or at least the perception of new risks). Still, without the proper attention, decades of frugal attention can be for naught.

The Volunteer State

It’s hard (though not impossible) to find someone willing to criticize program designs such as automatic enrollment, contribution acceleration, or qualified default investment alternative-eligible funds. Not only have these designs begun to help thousands of workers do the “right” things when it comes to saving for retirement, plan sponsors have, since the Pension Protection Act (PPA), had structure and sanction to act. Even critics had to admit that all an unwilling (or financially unable) participant had to do was “opt out.”

Voluntary remains the order of the day, even for the new automatic IRA designs recently touted by the Obama Administration (well, at least for workers—employers won’t have a choice, other than to offer that program or some kind of qualified plan).

Still, there seems to be a growing interest in underpinning the financial integrity of that system with a core level of mandatory withholdings, both from worker and employer; and a sense that “leakage” from things like in-service withdrawals and loans need to be plugged—and a notion that lump-sum options are better replaced with annuity streams, at least as a default.

Ultimately, of course, that could mean that our voluntary system will be converted into a mandatory approach. One in which employees would have to contribute a fixed amount/percentage, in which employers might be required to match, and from which workers would not be able to withdraw prior to retirement—and then only in some kind of periodic annuity.

It could happen—in fact, it might need to happen.

—Nevin E. Adams, JD

Editor’s Note: A somewhat modified version of the above appeared in the April issue of PLANSPONSOR magazine. You can check it out HERE

Famous Last Words

“It was a gray, chilly morning in midtown Manhattan and a line of unemployed, mostly white-collar workers, stretched for blocks around the Radisson Hotel. More than 1,000 middle managers, stockbrokers, consultants, secretaries and receptionists had come hoping to find a job. It was called a career fair, but there was no merriment - only a whiff of desperation.”—Intro to “60 Minutes” segment, “401(k) Recession.”

By now, you have no doubt either watched, had recommended to you, or at least heard about the “60 Minutes” special that ran a week ago Sunday. If you haven’t watched it yet, you should. Forewarned is forearmed, as they say.

No, it wasn’t very long (less than 15 minutes), but it was certainly enough to fuel the fires of those who are anxious to put the 401(k) out of our misery. Short as it was, you could basically cleave the segment into two propositions: that retirement savings shouldn’t be invested in stocks (or least not so much in stocks), and that fees—and hidden fees at that—are at least as much to blame for the decline in balances as the markets. Oh, and the real culprits—the ones that created the 401(k) and convinced employers to shed their commitment to pensions—are the same ones that have been fleecing all of us for decades. Well, at least we know who to sue.

The realities are, of course, more complicated than you’ll get in a 12-minute TV segment— particularly one that spends most of that time hanging out in a job fair with a long line of the unemployed who, for reasons I have yet to discern, showed up at that job fair with their 401(k) statements in hand.

Statement Impact

That made it possible for one interviewee to share that he had lost $140,000 (of course he hadn’t opened his statement until he was on camera)—though to lose that much he doubtless had the size balance many participants can only dream of. Another woman was able to illustrate her plight by pointing to a chart on her 401(k) statement—a chart that showed a steep increase from 2005 through 2007, before dropping just as sharply—to a point that, to my eye, seemed to be just about where 2005 started.

Now, nobody likes the idea of losing two years of savings and market growth, and it’s not that I don’t have empathy for their situation. I’m on the far side of 50 (albeit barely), after all—and my 401(k) statement isn’t looking any healthier than theirs. Of course, the “60 Minutes” crew was focusing mostly on folks who were un- or under-employed, and that not only hinders their ability to save, it could also mean that they’ll have to dip into those already-depleted savings.

When all is said and done, no one (except maybe “60 Minutes”) seems to be trying to argue that the 401(k) is “enough,” or that it was ever designed to be enough(1). Frankly, the only way it could be is if we mandate not only coverage, but participation, and participation at a rate of deferral that many workers would find prohibitive (unless, of course, you adopt some of the “pooling” aspects of Social Security). But let’s be honest—even with those pooling aspects (and a mandatory withholding of nearly 13% of worker pay), Social Security isn’t exactly on sound financial footing(2), and even defined benefit plans that were in solid financial shape two years ago—well, now aren’t.

Fee Sense?

More insidious were the claims about the impact of fees, and on that count, IMHO, the industry—specifically the mutual fund industry—has no one to blame but itself. Sure, the fees—well, at least the fee rates—well, at least most of them—are “disclosed” in the prospectus. Those kinds of disclosures may work for the lawyers, but they’re not much help to your average participant: “Where would you find it? Where would you find these fees in this prospectus? You can look on any page you want, and when you're all done reading it, and you will find some of the fees and the commissions here, but you won't find them all, and I'll bet you won't find half of 'em," Congressman George Miller (D-California), Chairman of the House Education & Labor Committee, told “60 Minutes.”

Moreover, in the “60 Minutes” segment, it was said “Miller's committee has heard testimony that they can eat up half the income in some 401(k) plans over a 30-year span.” HALF the income? I can understand that SOME investment funds with particularly low returns and SOME retirement plans with particularly high fees could create the potential for that situation, but….

Rumors Milled?

Therein lies the problem, of course. There are so many rumors and innuendos running around about 401(k) fees—what and how much is being paid, who it’s being paid to—and the rumors are all about how it’s all too much, and to people who aren’t doing anything to actually earn it. Rather than counter these accusations with the facts, many in the industry continue to hide (or appear to hide) behind the shroud of “we can’t.” You know the litany: “we can’t” tell participants how much they are paying because it’s too complicated to explain, or “we can’t” tell participants how much they are paying because it will cost too much to tell them, or “we can’t” tell participants how much they are paying because they won’t look at it anyway.

I don’t doubt the realities of the last two points, and the costs of complying with proposed disclosures by the DoL—less onerous than those contemplated by Congressman Miller—are staggering (3), but once you have cracked the mantle of trust, it’s hard to shake a sense that the real reason “we can’t” tell you what they are taking from your account is that they have something to hide (4).

Having been on that side of things, I know how complicated it can be to provide those disclosures —and having worked and communicated with plan sponsors and plan participants for most of my adult life, I also know how unlikely many are to be attentive to those disclosures that may be so costly to provide (5). Still, no one is well-served by what appears to the average participant (or congressman) to be an enduring reluctance to provide a straightforward answer to a perfectly legitimate question: “How much money are you talking from my account?”

If the retirement plan industry doesn’t come to terms with that reality—and quickly —well, “we can’t” might be someone’s famous last words.

—Nevin E. Adams, JD

The 60 Minutes segment is online HERE

(1) see “IMHO: ‘Broken’ Record”

(2) see “Vanishing Points?”

(3) see “IMHO: ‘Know’ Way”

(4) see “IMHO: No One (Else) To Blame”

(5) see “IMHO: What Will Participants Do?”

'Second' Opinions

ERISA’s 404(c) has long been held out by some as something of a magic talisman: Comply with its strictures, they claim, and you have an iron-clad defense against participant lawsuits —and, IMHO, the implication is a defense against ALL participant lawsuits. Of course, any number of ERISA experts will tell you that it is nearly impossible to satisfy those strictures, certainly not for every transaction (and mind you, 404(c) is transactional protection)—not that that seems to dissuade plan fiduciaries from trying, nor plan advisers from purporting to help them achieve that end. Nor are plan fiduciaries, or the participants and beneficiaries they support, ill-served by those efforts.

That said, I have long been surprised at how broadly the judiciary has been willing to extend those protections. Good news if you’re the plan sponsor getting sued, of course—but not-so-good if you’re a plan fiduciary looking for some consistency in the law.

The most recent example was Hecker v. Deere (see “Appellate Court Backs Deere Case Dismissal”), one of the litany of revenue-sharing lawsuits that have been brought (see “IMHO: Fighting Words”). This particular case has drawn the attention of the Department of Labor (DoL), and not for the first time. In fact, it was almost exactly a year ago that the DoL tried to help the appellate court do a better job applying the law than the District Court had (see “IMHO: The Letter of the Law”).

This time, the DoL said in a friend of the court filing that a “[p]anel rehearing is warranted to correct the panel’s mistakes of law and fact in misconstruing section 404(c ) of ERISA and declining to defer to the Secretary’s reasonable interpretation of her 404(c ) regulation.”

Besides the issue of deference to the Secretary of Labor, at issue in the DoL’s filing: “whether participants and beneficiaries exercise independent control,” but more specifically, did that exercise happen “in the manner described in the regulation,” because only then would the plan fiduciaries not be liable for any loss “that is the direct and necessary result” of that exercise of control.

The DoL cites language in 404(c)’s preamble that clearly puts the act of designating investment alternatives as well as the ongoing determination that those choices are “suitable and prudent” outside the shield of 404(c), and goes on to note footnote language that, IMHO, confirms the obvious—that the choice of those fund menu options is a task “over which the fiduciary, and not the participant has control”—and thus, even if the plan qualified as a 404( c) plan, those protections would not apply. Moreover, and at issue in the Deere case, the DoL notes, “[I]f on the other hand, the fiduciary maintains imprudent investment choices—such as investments with imprudently high fees (emphasis added)—then under the Secretary’s regulation, any resulting loss is not a ‘direct and necessary consequence of the participant’s exercise of control,’ and the fiduciary is not exempt from liability for that loss.”

The DoL notes that the court’s decision “appears to rest in large part on a mistaken impression that plaintiffs’ claims hinge on the fiduciaries’ failure to ‘scour the market to find and offer the cheapest possible fund,’ as well as the conclusion that the fees were necessarily prudent because the Plan’s array of investment funds were offered ‘to the general public’ at the same expense ratios that the Plans paid.” To the DoL’s point, it’s one thing to say that there is no obligation to find/obtain the cheapest fee, another altogether, IMHO, to claim that a multi-billion-dollar 401(k) plan has no fiduciary obligation to negotiate a better deal on behalf of its participants than they could do on their own account in a retail environment. To fail to do so is not necessarily a fiduciary transgression—but, IMHO, it surely is worth a proper hearing.

To its credit, the DoL didn’t just take issue with the fact that the court basically ignored its earlier counsel, nor did it focus strictly on its belief that the court just plain got it wrong, though it did say that “[t]he court also may not have fully understood the potentially far-reaching ramifications of its decision, which permits fiduciaries to evade accountability for the imprudent selection and maintenance of funds in defined contribution plans.”

The DoL also looked out to the future to see where a judicial misapplication of the law might take us and, I’m pleased to say, they cited this column (1). “These implications have not gone unnoticed,” the DoL said. “For instance, a commentator in PLANSPONSOR notes that if he were advising an employer with a 401(k) plan based on this decision he would ‘advocate giving participants LOTS of fund choices—via a brokerage window if possible,’ and would advise the employer that it ‘won’t have to worry about being prudent in the selection of the fund options for the plan because, according to [this Court’s] ruling, that [404(c)] safe harbor applies to that decision.’” The DoL then notes that “[e]ven if this Court meant to limit its holding to plans that offer a brokerage window of the type offered by the Deere plans…it is not hard to imagine that plan designers will advocate including this feature for all plans in order to immunize fiduciaries from any liability with respect to the selection of the plan’s option.”

Of course, the “counsel” I offered in that column was somewhat tongue in cheek. To me, it’s evident on the face of the matter that that would be an inappropriate result—and yet, as the DoL acknowledged by including the comment, you don’t need to reach very far from the court’s articulated rationale to arrive at that result.

In fact, the DoL has, consistently to my ears, and across administrations, said that, in the absence of 404(c)’s protection, plan fiduciaries are responsible for all plan investment decisions, even those made by well-informed, active, and engaged participants, even if that is further than many plan sponsors are willing to acknowledge.

That makes those protections all the more precious—and, with all due respect to the judges who consider these situations, all the more important that they get it right.

—Nevin E. Adams, JD


(1) IMHO: “Winning” Ways?

See also: IMHO: Letter of the Law

"After" Thoughts

Last week, I attended a media briefing sponsored by BGI titled “Restoring Confidence: Saving the Future of Retirement.” That session featured insights from some new participant research, some perspectives about the current plan-trends landscape, some thoughts on annuitization in 401(k)s, and even some thoughts from a congressman who knows more than a little about pensions and 401(k)s.

Some random thoughts from, and stimulated by, that session:

• Research conducted by the Boston Research Group (BRG) (and sponsored by BGI) indicates that 33% of participants have put off looking at their statements because of the recent financial turmoil. I’m betting a like number never looks at their statements anyway.

• No news is actually bad news. Not only can participant statements provide some much needed motivation to do (more of) the right things, people might be surprised to see how well their accounts have held up.

• People have seen so many reports about how poorly indexes like the Dow and S&P 500 have performed that they probably overestimate their personal losses. Many, perhaps most, probably haven’t lost that much. Of course, some of those “too much in company stock” accounts may have fared worse.

• Data from the Employee Benefit Research Institute (EBRI) suggest that, in a “mere” two years, younger participants (who have smaller balances, on average) could be back to where they were last fall. It still feels like we’ve “lost” two years in three months—and most of that “recovery” is going to be funded from our own pockets.

• Disclosure is not (necessarily) clarity, and more disclosure is not (necessarily) more clarity. However, it beats the alternative.

• Two-thirds of participants in the BRG study who were previously confident that they would have enough to live comfortably say their confidence level was unchanged, and 18% said their confidence had actually increased. No word on whether that confidence was justified or not.

• Nobody is in favor of conflicted advice—there remains, however, disagreement as to when that potential conflict actually creates bias, and whether that conflict can (ever) be sufficiently disclosed.

• During the discussion, Congressman Andrews referenced a recent GAO report that purports to show that “biased” advice actually yields poorer investment results than unbiased advice. However, that recent (March 2009) GAO report is actually a report about a not-so-recent (2005) SEC analysis of (just) 24 defined benefit pension consulting firms registered as investment advisers, (just) 13 of which allegedly “failed to disclose significant conflicts.” The GAO report cautioned that “[b]ecause many factors can affect returns, and data as well as modeling limitations limit the ability to generalize and interpret the results, this finding should not be considered as proof of causality between conflicts and lower rates of return….” However, that distinction is NOT being made by those (including Congressman Andrews) who want to rely on the GAO report as saying exactly that.

• Interestingly enough, the GAO report, while only 16 pages long, is nonetheless twice as long as the SEC analysis it was based on (see “IMHO: Disclose Sure?” ).

• According to the BRG research, among participants whose 401(k) balances had declined over the past 12 months, 28% said they planned to delay retirement, while 20% said they planned to “work until they die.” Unfortunately, we don’t always have that option.

• Nearly half (45%) of all 1,000 participants surveyed said they would "save more” to replenish their 401(k) losses - though Warren Cormier noted that studies have shown that kind of good intention tends to be akin to people who, on New Year's Day, say they are going to go to the gym regularly.

• Nearly three-quarters (73%) of the BRG respondents said that "knowing I would have a consistent, guaranteed monthly income in retirement other than Social Security" would boost their retirement confidence. What’s up with the remaining 27%? Or is it simply that “consistent, guaranteed” is not the same as “consistent, guaranteed, and ENOUGH?”

• “Knowing how much money I would need to retire comfortably” was cited as a positive factor by just 61% of survey respondents. Doubtless the rest already have a sense that what they need and what they actually have are at variance.

• The BRG survey data indicated that 90% of survey respondents would be interested in a 401(k) plan option that would provide a means of securing guaranteed monthly retirement income. However, based on the (lack of) take-up rates in the real world, an acceptable source of “guaranteed monthly retirement income” wouldn’t appear to include an annuity.

• People confident about their retirement prospects behave differently (and generally, at least when it comes to saving for retirement, “better”) than those who aren’t. But are they more confident because they behave differently, or do they behave differently because they are more confident?

—Nevin E. Adams, JD

You can read the coverage of the session; Turmoil Dents Participant Confidence , Andrews: Dumping the 401(k) Would be a “Mistake”, Is the 401(k) Ready for Change? at http://www.plansponsor.com/pi_type11?RECORD_ID=45683.

Tweet Spots

Those who try to figure out when certain trends reach a tipping point—who try to figure out when things have crested, the beginning of the end of the beginning—should note that we may have reached that point about three weeks ago—when I started “tweeting.”

And, no, I wasn’t commemorating the arrival of spring by making bird calls. “Tweeting,” if you haven’t heard, is reportedly now all the rage as a means of communication.

Well, sort of.

See, you “tweet” by establishing an account on twitter.com (it’s free). And, once there, you can keep everybody up to date on what you’re doing.

Well, sort of.

What you actually do is update everybody who has signed up for your updates (“followers”). And, by update, what I mean is that you can tell those following your activities what you’re doing…in 140 characters (or less). Not 140 words…140 CHARACTERS. About half the length of this paragraph….

Now, I’ve been aware of Twitter and its capabilities for some time now. But, for a guy who long ago eschewed putting up creative status messages on AOL’s Instant Messenger, and who still finds Facebook’s “what are you doing now” box an annoying reminder of unfinished business (not to mention a mundane existence), the notion of incessantly updating the world on the trivialities of one’s daily existence just seemed—well, trivial.

Having said that, over the past several weeks I have found Twitter to be an interesting way to keep up with breaking news from a wide variety of sources (including politicians, many of whom are now “tweeting,” apparently), has already helped me find a good book, allows you to connect with people you wouldn’t normally be able to even find, much less interact with (although that cuts both ways), won’t tie up your e-mail, and has the potential, believe it or not, to actually help you find information and promote your professional activities.

Well, sort of.

As long as you can do so in that 140 character space—and only, to state the obvious, if somebody’s “listening.”

In point of fact, while for the moment it’s “fun,” I’m not yet sure how effective tools like Twitter will be in the long run, nor how its “soundbytes” will work for complex areas such as retirement planning. Not that I’m not intrigued by how Newt Gingrich spent his Friday evening (I’m more intrigued that he’d be willing to share that information), or how a “professional Wal-Mart shopping cart” finds the time (or Internet connection) to keep up with my postings, but there’s a great deal of this medium’s “information” that really isn’t worthy of that name. Still, it’s been interesting to meet the challenge of creating a message that (literally) fits the medium, and one that I’m sure I will improve on over time.

There’s a reason good advisers have an “elevator speech”—a “reason I should be hired to help you” explanation that can be delivered in the space of time an elevator ride consumes. Ditto the ability to share the essentials of participation and investing in a group setting in what are frequently “less-than-optimal” settings. Sometimes, perhaps most times, you simply don’t have all the time you’d like to explain things the way you’d like to explain them.

There is a science to being heard amidst all the clutter, IMHO. It’s all about attracting followers, and, from what I have discerned on Twitter, at least initially, you must follow to be followed (unless, of course, you’ve already attracted a following). You also have a much better chance of being heard, IMHO, if you’ve been referred/followed by someone they are already listening to.

Success in this “new” medium (it’s about three years old) seems to be about listening at least as much as you talk, sharing timely information that is useful (and entertaining), and doing so at a time—and in a setting—that is convenient for those whom you want to reach.

And in my experience—regardless of medium, message, or audience demographic—that’s always been the best way.

—Nevin E. Adams, JD

You can follow me on twitter at http://twitter.com/nevinesq

The Mean-ing of Average

As if retirement savers didn’t have enough problems, last week Fidelity Investments reminded us how much money we’re going to need for health care.

According to Fidelity’s annual estimate, an average couple retiring in 2009 would need $240,000 set aside by age 65 in order to pay for health-care expenses in retirement (see “Retiree Health Care Estimate Jumps 6.7%”). Worse, that’s up from $225,000 in 2008—and even worse, the 2009 figure is 50% higher than the $160,000 Fidelity estimated in 2002 would be required.

Even those workers who still have employment-based retiree health benefits to supplement Medicare, but who must pay their own premiums, need to set aside a hefty amount, according to a 2008 EBRI report; men would need between $102,000 and $196,000 in current savings (50th and 90th percentiles, respectively), while women would need between $137,000 and $224,000, respectively, due to their greater longevity, according to the report (see “EBRI Pinpoints Retiree Health Expenses”.

That 2009 Fidelity estimate continues to assume individuals do not have employer-provided retiree health-care coverage, but it does take into account coverage by Medicare, while assuming life expectancies of 17 years for a male and 20 years for a female.

Now, those estimates are actuarially sound. EBRI notes that, on average, women age 65 live to age 85, while men will live to age 82. However, as Dallas Salisbury, EBRI’s CEO, has reminded me more than once, most of the population is not average. In fact, by the very definition of the term, “average” means that about one-half of men and women will die before they reach average life expectancy—and the rest will live longer.

EBRI research has shown that a couple retiring at age 65 in 2008 could need as “little” as $194,000 to cover health insurance costs and health-care expenses not covered by Medicare. However, if that couple happens to live far beyond average life expectancy, say to that experienced by the 90th percentile, and at the same time needs to use a lot of prescription drugs during retirement (again, the level out at the 90th percentile), EBRI notes that the couple could need as much as $635,000 in savings when entering retirement.

Indeed, setting aside the financial viability concerns surrounding the Medicare program (it’s actually in far more precarious financial shape than Social Security), that coverage attends to only a little more than one-half of the Medicare population’s health-care needs, according to EBRI. Not that most Americans are aware of those limitations, IMHO. In fact, I’d be willing to bet that many, perhaps most, assume that Medicare is all the post-retirement insurance they need. Of course, I’m equally sure that many assume that those Social Security checks will provide all the income they need¬ – only to discover too late that it is all they have.

Ultimately, these projections serve to remind us of a couple of key considerations. First, health-care costs need to be contemplated as a part of retirement savings—both because those costs can quickly wipe out funds set aside for living expenses, and because not purchasing the proper amount/kind of health care can have a deleterious affect on your quality of life. Second, one shouldn’t assume that Medicare will address every medical need, any more than you would assume Social Security will comfortably address every living expense. And finally, and perhaps most significantly, “average” is only one point of reality, and one that few of us actually live—or retire—in.

—Nevin E. Adams, JD

See also see “The Lure of Averages”