…Like protecting yourself from these five common exposures
It took a lot of work to set up your company’s participant-directed define contribution retirement plan. And guess what? Your job’s not done…yet.
Just because your plan is up and running, you still have a duty to proactively monitor your plan’s investments on an ongoing basis. Why? Because the courts, in many instances, will hold you responsible for your actions or lack of action when it comes to monitoring your plan’s investments. Judgments can be costly. Compliance is confusing. That’s why The Wagner Law Group and Franklin Templeton, Inc. put forward the following whitepaper detailing the five most important misconceptions by plan managers about fiduciary risk and plan investments.
Because of the large amount of work required to establish a defined contribution retirement plan, plan sponsors may mistakenly feel that their job is finished once the plan is up and running. In actuality, plan sponsors have a duty to proactively monitor the plan’s investments on an ongoing
basis, and they should be mindful of the fiduciary risks associated with mishandling the plan’s investments. The rules governing a fiduciary’s ongoing duties are not always intuitive, which can lead to misconceptions about a plan sponsor’s continuing obligations to the plan and its participants. While similar fiduciary duties apply to defined benefit plans, this white paper focuses on particular issues related to participantdirected defined contribution plans.
These misconceptions may even cause a plan sponsor to grow complacent enough to neglect the fiduciary maintenance work that is required. The reality is that failure to properly manage the plan’s investments can be a costly mistake. The courts in many instances have held plan sponsors accountable for their actions or, to be more precise, their lack of action. The good news is that we can draw valuable lessons from these court cases, and they can help clear up various misconceptions about fiduciary risk and the investment duties imposed on plan sponsors.
When times are good, people may find it difficult to imagine relationships breaking down to the point where lawsuits are filed against one another. Similarly, employers that go to the trouble of establishing a 401(k) plan may find it hard to envision plan participants turning on them one day and suing them.
As a practical matter, employees and plan participants do not always remain on good terms with their employer. In addition, if a participant suffers a heavy financial loss that could potentially be related to the employer’s mismanagement of the plan, the participant may feel that he or she has no choice but to move forward with a legal claim against the plan sponsor.
The federal law that governs legal claims against plan sponsors and other fiduciaries is known as the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). ERISA litigation and the related case law involving defined contribution plans have grown considerably in recent years. One possible explanation is LaRue v. DeWolff, a 2008 Supreme Court decision that definitively ruled that individual participants may recover from their employer or other plan fiduciaries when their plan accounts suffer a loss caused by a fiduciary breach.1Another likely factor is the success with which plaintiffs’ attorneys have been able to use class action lawsuits to file ERISA claims on behalf of all similarly harmed participants under a single plan.
As a result of the successful track record for plaintiffs’ attorneys and the related exposure in the media, many participants now understand that they have recourse under the law if the plan or its investments are ever mismanaged. Note, however, the successful track record for plaintiffs’ attorneys has been largely achieved through settlement, rather than actual outcomes. Plan sponsors should be mindful of this development, and they should not blindly assume that their participants will never file a legal claim against them. While no plan is too small to be sued, there is less likelihood that a small plan will be sued, because of the smaller attorneys’ fees that may be received. Instead, they should consider implementing prudent review procedures as further described in Exhibit A.
Plan sponsors have a fiduciary duty under ERISA to prudently select the investments that are to be offered to their participants and to monitor these investment options on an ongoing basis. In general, these monitoring duties require plan sponsors to review the plan’s investments regularly and to replace investment options as necessary. But the reality is that certain plan fiduciaries may not fully appreciate the importance of their monitoring duties, and they may not prioritize them. Some may even question the need to revisit the plan’s investments so frequently, putting themselves at fiduciary risk by leaving the plan’s investments on “autopilot.” If a plan fiduciary fails to monitor the plan’s investments properly, the fiduciary becomes personally liable to the plan for any resulting losses.
Participants may recover from the responsible fiduciary by seeking assistance from the U.S. Department of Labor (the “DOL”). They can also recover from the plan sponsor by taking legal action. Plaintiffs’ attorneys have become effective at recovering money on behalf of participants, as illustrated in the cases below. Courts have generally found awards of attorneys’ fees in the range of 25% to 33% of the settlement amount to be reasonable.6 Hourly fees of $1,060 per hour have been found to be reasonable for experienced ERISA attorneys.
In these cases, it is typically alleged that the plan sponsor failed to monitor the plan’s investments properly. Additionally, the respective participants claimed that the plan sponsor had failed to monitor the reasonableness of the plan’s investment fees and expenses, including the revenue sharing payments made from the plan’s investment funds to the plan’s recordkeeper (e.g., shareholder service fee, 12b-1 fee). Based on these and other facts, the courts made substantive and procedural rulings in favor of the participants, resulting in the monetary settlements and awards to the plan participants as described on the previous page.
To minimize fiduciary risk and potential liability, plan sponsors should consider conducting reviews of the plan’s investment menu at regular intervals (e.g., quarterly). These reviews should examine investment performance as well as the reasonableness of investment fees and any revenue sharing payments that are payable to the plan’s recordkeeper. A fee policy statement (“FPS”) can provide easy-to-follow guidelines for evaluating such fees and expenses, and plan sponsors may use an FPS to monitor any revenue sharing payments made to the recordkeeper. If a plan sponsor needs assistance monitoring the plan’s investments and the related fees or implementing an FPS, it should consider consulting a qualified advisor.
Investments by their nature have risks associated with them. In the case of 401(k) and 403(b) plans as well as other similar plans with participant-directed investments, plan sponsors may incorrectly assume that all investment responsibility resides with the participant. A plan sponsor may even believe that there is no liability risk for the plan sponsor when it comes to the plan’s designated investment options, as long as the plan menu is large enough to give participants plenty of choice.
As a matter of law, plan sponsors have a duty to prudently select the plan’s investment options, which means that they must screen out any unsuitable investment choices as well as discontinue any designated investment alternatives that become unsound after originally selected. There is a “safe harbor” under ERISA Section 404(c), which protects plan fiduciaries from any liability for losses that result from the participants’ exercise of control over their accounts.8 Participants are free to make choices that they consider are best for themselves, so long as the fiduciary provides an appropriate menu of investment options and gives sufficient information about them so that a participant may make an informed choice.
Plan sponsors may not select the investment menu and then just walk away. It is the DOL’s long-standing position that the act of designating investment options for plan participants is a fiduciary function, and that Section 404(c) cannot eliminate the plan fiduciary’s obligation to periodically evaluate whether the investment options should continue to be made available to participants. The DOL’s position was affirmed in Tibble v.Edison International. The supreme court explained that ERISA embodies the basic principles of trust law and that the “duty of prudence involves a continuing duty to monitor investments and remove imprudent ones under trust law.”
Offering too many investment choices may prove to be a poor fiduciary decision. Recent lawsuits have alleged that participants were offered too many investment elections.11 The results of these lawsuits targeting plans sponsored by some of the largest elite-universities have been mixed.12 Some have found that offering too many investment options for participants is not enough for a breach of ERISA’s duty of prudence, but there is evidence that offering a large number of investments is counterproductive. Rather than focusing solely on the quantity of investment options offered to participants, plan sponsors should pay attention to the quality and the diversity of the plan’s available investments for participants.
To ensure the plan menu covers a sufficiently diverse range of asset classes, plan sponsors should consider maintaining an investment policy statement (“IPS”) and using it to guide their fiduciary review of the plan investment menu. Plan fiduciaries can also use the investment criteria from the IPS to help them monitor the ongoing quality of the investments, their investment performance and the continued reasonableness of the investment fees and expenses. IPS guidelines can also help plan sponsors prudently determine whether and when an investment option should be replaced.
Plan sponsors often need to engage two types of administrative providers for their plans; a recordkeeper and a third party administrator (“TPA”). A recordkeeper establishes and maintains individual accounts for the plan’s participants. A plan sponsor might retain a TPA to assist with plan design, annual compliance testing and regulatory filings. Although recordkeepers and TPAs are not in the business of providing investment advice, they may offer ancillary support to plan fiduciaries when they are choosing the plan’s investment options. A recordkeeper or TPA may volunteer their personal views concerning the quality of a particular investment fund. If asked, these providers may even provide informal recommendations concerning the plan’s investments based on what their other plan clients are doing and other relevant information.
Plan sponsors should not rely on any investment tips that they might receive from their administrative providers in the same way that they might rely on fiduciary investment advice. From the perspective of the plan sponsor’s own fiduciary duty, it would be imprudent to trust the investment recommendations of a firm that is not formally in the business of providing such advice. Firms that provide investment-related services are subject to heavy regulation, making them accountable for their recommendations under federal and state securities laws as well as ERISA.
The test for determining whether a provider is a fiduciary is a functional test.13 It does not matter what an actor calls itself; determining whether it is a fiduciary is based on what it does. An ERISA fiduciary includes anyone who is paid a fee to render investment advice about assets held in the plan. Investment advice was defined in 1975 by the DOL by application of a five part test. The regulation provides that an adviser is a fiduciary with respect to any particular instance of advice only if he or she meets each and every element of the five-part test with respect to the particular advice recipient or plan at issue.
If a plan sponsor tries to hold an administrative provider accountable for any investment advice, the provider would presumably assert that it was not a functional fiduciary under the five-part test because (i) it does not regularly provide investment recommendations, (ii) its recommendations are generic and are not individualized to particular plans, (iii) there is no mutual understanding that it would be providing fiduciary advice, and (iv) assuming that its service agreement has the customary language, a contractual disclaimer confirms that it does not serve as a fiduciary.
Merely entering into a contract by which a selection of funds is offered to a plan would not necessarily make the provider a fiduciary.17 Plan sponsors should independently evaluate a provider’s fund offerings and make them available to plan participants only if they are able to reach their conclusions that they are prudent following their own investment analyses.
In addition to maintaining individual participant accounts, the plan’s recordkeeper customarily also provides an investment platform. This platform gives the plan and its participants the ability to access a universe of investment funds. Accordingly, the investment options to be offered to the plan’s participants will be selected from the investment funds that are made available on the recordkeeper’s platform.
In many programs, the recordkeeper will determine the specific share class of the investment funds that are made available to its plan clients. Furthermore, since the recordkeeper may make changes to its fund universe from time to time, the recordkeeper typically reserves the right to add or remove investment options from a plan client’s investment menu for the purpose of making corresponding changes. Once the plan sponsor designates the investment options that are to be offered, the recordkeeper generally implements the offering to participants and provides any necessary investment disclosures to them.
Because of the critical role that the recordkeeper plays in the operation of the plan’s investment menu, plan sponsors may assume that the recordkeeper is acting as an investment fiduciary. However, given the limited scope of a traditional recordkeeper’s investment role, plan sponsors should not automatically make this assumption. For example, in Leimkuehler v. American United Life Insurance Co., the court ruled that a recordkeeper’s “product design” decisions, which determined the universe of funds available to the plan as well as their share class, did not turn the recordkeeper intoa fiduciary.
Although recordkeepers play a vital role in the implementation of the plan’s investment menu, plan sponsors should not view them as advisors when it comes to the management of the investment menu. Plan sponsors should consider engaging a separate provider, such as a qualified financial advisor, to help them select and monitor the plan’s investment options.
An advisor can provide helpful guidance concerning the selected funds as well as the other investments available from the recordkeeper’s fund universe. Additionally, if a recordkeeper’s program requires the plan menu to include one or more funds pre-selected by the recordkeeper, the advisor can provide an independent assessment of the prudence of utilizing such funds. Consistent with their duty to monitor the plan’s investments on an ongoing basis, plan sponsors should also consider meeting with the advisor regularly (e.g., quarterly) to assist with the reviews of each of the plan’s investment options. Any recommendations made by the advisor should be considered by the plan sponsor in light of the advisor’s investment expertise and experience as well as the advisor’s status as a fiduciary or non-fiduciary to the plan.
Plan sponsors should be particularly cautious when a recordkeeper claims that it doesn’t charge any recordkeeping fees, although this misconception may be less prevalent than it was before DOL fee disclosure regulations19 required a detailed breakdown of both direct and indirect compensation.
Recordkeepers do not provide recordkeeping services to a plan “free of charge.” There are considerable costs associated with 401(k) plan administration, such as recordkeeping software, computer infrastructure, as well as staff. Plan sponsors are advised to actually read the fee disclosures provided by the recordkeeper.
A recordkeeper’s sole compensation might not be limited to direct payments from a plan or plan sponsor. It may instead receive compensation by means of indirect payments, such as revenue sharing from a third party, including a mutual fund. The arrangements under which these indirect payments are made to a recordkeeper are referred to as revenue sharing arrangements.
Revenue sharing arrangements are frequently challenged in 401(k) plan litigation under ERISA but does not prohibit them. Their use in recent years has declined but there are a number of ways in which revenue sharing arrangements can be addressed under a plan.
Both the DOL and courts take the position that if a plan service provider, such as a recordkeeper, receives revenue sharing payments attributable to a plan’s investment in a fund, then the provider’s compensation for plan-related services includes those revenue sharing payments. It is the plan sponsor’s fiduciary responsibility to see that the total compensation is reasonable in light of the services provided.
The relevant case law under ERISA provides valuable guidance on the true nature of fiduciary risk and the importance of monitoring the plan’s investments regularly. Plan sponsors should not assume that they are immune from fiduciary liability.
Accordingly, they should consider conducting reviews of the plan’s investment menu on a regular basis (e.g., quarterly) and using an FPS to evaluate investment fees as well as any revenue sharing payments made to the plan’s recordkeeper. Rather than focusing solely on the quantity of investment options, plan sponsors should evaluate the quality and diversity of the plan’s investment options using an IPS. If an administrative provider offers any investment tips, plan sponsors should independently evaluate them and not automatically rely on them. Lastly, plan sponsors should consider engaging a qualified advisor to help them monitor the plan’s investments on an ongoing basis.
We have attached a Plan Sponsor Self-Assessment and Checklist (Exhibit A), which provides a brief summary of the various misconceptions and related court cases discussed in this paper. This checklist can be used by plan sponsors to perform their own fiduciary assessment and to help them determine whether any corrective action should be taken.
All investments involve risk, including loss of principal.
Franklin Resources, Inc., its specialist investment managers, and its employees are not in the business of providing tax or legal advice to taxpayers. These materials and any tax-related statements are not intended or written to be used, and cannot be used or relied upon, by any such taxpayer for the purpose of avoiding tax penalties or complying with any applicable tax laws or regulations. Tax-related statements, if any, may have been written in connection with the “promotion or marketing” of the transaction(s) or matter(s) addressed by these materials, to the extent allowed by applicable law. Any such taxpayer should seek advice based on the taxpayer’s particular circumstances from an independent tax advisor.
Franklin Resources, Inc. is not affiliated with Marcia Wagner and The Wagner Law Group.
© 2020 Legg Mason Investor Services, LLC. member FINRA, SIPC. Legg Mason Investor Services, LLC and ClearBridge Investments are wholly-owned subsidiaries of Franklin Resources, Inc. 970069 RETX016255 9/20
 LaRue v. DeWolff, Boberg & Associates, Inc., 552 U.S. 248 (2008).
 See, e.g., Spano v. The Boeing Co., No. 13-8026 (7th Cir. Nov. 29, 2013).
 Plaintiffs’ attorneys specialize in representing individuals who claim that they have been harmed by other parties. They may be willing to represent such individuals for contingency fees that are payable only if the case is won.
 Section 2550.404c-1(d)(2)(iv) of the U.S. Department of Labor regulations.
 ERISA Section 409
 Johnson v. Fujitsu Technology and Business of America, Inc. 2018 WL 2183253 (N.D. Cal. May 11, 2018)
 Clark v. Duke Univ., No. 1:16-CV-1044, 2019 WL 2579201 (M.D.N.C. June 24, 2019)
 ERISA Section 404(c) and the related DOL regulations include various administrative and investment-related requirements. These conditions must be met in order for the safe harbor protection to become available.
 Preamble to DOL regulations under ERISA Section 404(c), 57 Fed. Reg. 46,906 (October 13, 1992).
 Tibble v. Edison International, No 10-56406 (9th Cir. March 21, 2013).
 Tracey v. Massachusetts Inst. of Tech., 395, F. Supp. 3d 150 (D. Mass. 2019), settled for $18 million, awarded $4.5 million in attorneys fees  Ibid
 Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009)
 However, as noted in Mortgage Lenders Network USA v. CoreSource, 335 F. Supp. 2d 313, 319-323 (D. Conn. 2004) a contractual disclaimer is still relevant for purposes of determining a provider’s fiduciary/non-fiduciary status, even if it is not conclusive evidence of its status  29 U.S. Code § 1002 (21)(A)(ii).
 Under the regulation, for advice to constitute “investment advice,” an adviser who is not a fiduciary under another provision of the statute must—(1) render advice as to the value of securities or other property, or make recommendations as to the advisability of investing in, purchasing or selling securities or other property (2) on a regular basis (3) pursuant to a mutual agreement, arrangement, or understanding with the plan or a plan fiduciary that (4) the advice will serve as a primary basis for investment decisions with respect to plan assets, and that (5) the advice will be individualized based on the particular needs of the plan or IRA.
 Leimkuehler v. American United Life Insurance Co., 713 F.3d 905 (7th Cir. 2013). It should be noted that the case law in this area is mixed, and it is possible for a court to rule that a particular recordkeeper should be held accountable as a functional fiduciary based on the particular facts of the case. However, it would not be prudent for plan sponsors to automatically assume that the court will rule in their favor. See also Teets v. Great-W. Life & Annuity Ins. Co., 921 F.3d 1200 (10th Cir. 2019), cert. denied, No. 19-382, 2019 WL 6257428 (U.S. Nov. 25, 2019), and Contra Rozo v. Principal Life Ins. Co., No. 18-3310, 2020 WL 543378 (8th Cir. Feb. 3, 2020), where ability to set crediting rate in a guaranteed product made the provider a fiduciary.
 Section 2550.408b-2 of the U.S. Department of Labor regulations.
 DOL Advisory Opinion 2013-03A.
 See, e.g., Tussey v. ABB, Inc., 746 F. 3d 327 (8th Cir. 2014).