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).