3(21) and (38) Fiduciary Outsourcing. Blake Willis, July Business Services Rick Keast, Redhawk Wealth Advisors

Transcription

1 3(21) and (38) Fiduciary Outsourcing Blake Willis, July Business Services Rick Keast, Redhawk Wealth Advisors

2 3(21) and 3(38) Fiduciary Outsourcing Presented by: Rick Keast Senior Vice President Business Development and Marketing Redhawk Wealth Advisors, Inc. (920)

3 Agenda Who is a Fiduciary under ERISA Investment Fiduciary - ERISA 3(21) or 3(38) Fiduciary Warranty/Guarantee ERISA Litigation Tibble vs. Edison International Proposed Fiduciary Standard How can Fiduciary Outsourcing Help? 3

4 Who is a Fiduciary Under ERISA 4

5 Fiduciary Duty A fiduciary duty is the highest duty of care in law and equity. Serious business for a business owner! 5

6 Who is a Fiduciary Under ERISA? Who is a fiduciary? Plan must have at least one fiduciary - plan administrator. Anyone exercising discretion in the administration of the plan. All members of administrative committee. What are the responsibilities? Act solely in interest of participants to provide benefits. Carry out duties prudently. Follow the plan document. Diversify plan investments. Pay only reasonable plan expenses. Hiring and monitoring providers. 6

7 Fiduciary Liabilities Fiduciaries are personally liable for plan losses caused by a breach of their ERISA fiduciary responsibilities and may be required to: Restore plan losses (including interest). Return ill-gotten gains. Pay the expenses relating to correction of inappropriate actions (e.g. appraisals, calculations). When Cogent asked Retirement Planscape responders about understanding plan fees, only 35% of sponsors at plans with less than $5 million in assets felt they understood their plan s fees very well. 7

8 Investment Fiduciaries What s the difference between investment fiduciaries? What can we sell you? Fiduciary Non-Fiduciary Plan sponsor selects investments Stock brokers, insurance agents, most banks, brokerage and insurance firms. 8

9 Investment Fiduciaries What s the difference between investment fiduciaries? We ll help you do it ERISA 3(21) Fiduciary Co-Fiduciary Non-discretionary investment advisor Only recommends list of investments No legal responsibility or liability Plan Sponsor selects investments 9

10 Investment Fiduciaries What s the difference between investment fiduciaries? We ll do it for you Full Fiduciary ERISA 3(38) Fiduciary Discretionary investment manager We select and monitor investments Legal responsibility and liability Examine fees reasonable E&O and Fiduciary Liability Insurance 10

11 Mitigating Fiduciary Risk 11

12 Fiduciary Warranty Gimmick/Protection? Looks very official - a certificate and official seal. Like any warranty it includes terms and conditions that limit the warranty. Go out of their way to make sure that they are not identified as serving in a fiduciary capacity. Will only defend plan sponsors in rare instances. Typically only states that the investment options selected were prudent and offer a broad range of investment alternatives. Cover such a small part of fiduciary liability and very few cases are ever litigated on what is covered. 12

13 Fiduciary Warranty Gimmick/Protection? Early warranties covered the following focused more on marketing than substance. Broad range of investment alternatives. Meeting ERISA s Standard of Prudence. Appropriate for long-term investing. In the beginning, the warranty programs never suggested they were taking the place of the plan sponsor and/or replacing the sponsor s primary fiduciary status, responsibility, or liability. Focused on indemnification vs. rather than taking on fiduciary status. 13

14 Fiduciary Warranty Gimmick/Protection? The warranty solutions morphed into more clearly defined Fiduciary Guarantees Must follow investment selection and evaluation process. Helping employers meet the highest fiduciary standard. Still no affirmative acceptance of fiduciary status. 14

15 Fiduciary Warranty Gimmick/Protection? Read the fine print The warranty does not cover a claim or loss resulting from or related to fees and expenses of the program. While we can t eliminate the fiduciary duty for plan sponsors, we are able to provide a level of support to help them feel more confident in their duties. We will pay (indemnify) for loss to the extent that such loss is not reimbursed by insurance or by any other source. We are committed to helping our employers meet the highest fiduciary standards for selection and monitoring of the investments they offer their 401(k) participants. 15

16 ERISA Litigation 16

17 Plenty of Litigation ERISA settlements top $1.3B in 2014 ING - $15M settlement for revenue sharing Lockheed Martin $62M settlement for excessive fees Fidelity $12M settlement for excessive fees Ameriprise $27.5M settlement for excessive fees MassMutual $9.4M settlement for excessive fees Nationwide - $140M settlement for revenue sharing Northern Trust - $36M settlement for excessive fees AEGON - $40M excessive fee suit 17

18 Tibble vs. Edison International Supreme Court Case has Agreed to Hear Excessive Fee Case Initially Filed in 2007 If Tibble Wins Potential Floodgate to New Claims Against Plan Sponsors Could Upend the Type of Investments Offered to 401(k) Participants Used Retail Class Shares of 6 Mutual Funds Menu of 40 Breach Because Lower Institutional Shares were Available 3 Replacements Funds Introduced in Replacement Funds Introduced in

19 At the Heart of the Case: Tibble vs. Edison International 1. Claims against a sponsor must be made no more than six years after the time of alleged fiduciary breach. 2. Sponsors have an ongoing duty to monitor the prudence of investment options in plans. A failure to remove imprudent investments begins a new sixyear statute of limitation period, after which a claim can be brought. 19

20 Tibble & Edison Opportunities Immediate Investment Review Review Fees and Performance Retail Funds vs. Institutional Funds or ETFs Ongoing Monitoring is Important at least annually If an Imprudent Fund Needs to Stay in the Plan make it Available in a Brokerage Window Improve Plan Sponsor Education to include: Share classes and Revenue Sharing ETFs & CITs Stable Value Funds Group Annuity Contracts 20

21 Tibble & Edison Opportunities Supreme Court rendered a decision on 5/18/2015 and the impact will be Monitor investments regularly. Scrutinize everything. Review investment fees and share classes. Will need to justify retail share classes. Review contracts with plan sponsors. Supreme Court referred back to the common law of trusts, which provides that a trustee has a continuing duty separate and apart from the duty to exercise prudence in selecting investments at the outset to monitor, and remove imprudent, trust investments. The higher court then sent the case back to the 9th Circuit to consider the plaintiffs' claims. 21

22 Even with 408(b)(2) - Disparity of Fees BrightScope,

23 Plan Sponsors Refine Approach to Fees Most important step plan sponsors have done over the past 12 months was to review fees. Noticeable spike in the way fees are paid: 1. More than twice as many plan sponsors changed how they pay fees in 2014 than Moving away from revenue sharing to an explicit per-participant fee More than half of plan sponsors are likely to conduct a fee study in % are likely to switch funds to lower fee share class. 44.3% intend to renegotiate recordkeeping fees. Use of Collective Investment Trusts (CITS noticeably increased in 2014 (from 48.3% in 2012 to 60% in 2014). 23

24 Proposed Fiduciary Rule 24

25 Proposed Fiduciary Rule DOL is proposing a new fiduciary standard (established in 1975), that will significantly impact advisors A person renders fiduciary investment advice by: 1) providing investment or investment management recommendations to an employee benefit plan, a plan fiduciary, participant or beneficiary, or an individual retirement account (IRA) owner or fiduciary, 2) and either a) acknowledging the fiduciary nature of the advice, or b) acting pursuant to an agreement, arrangement, or understanding with the advice recipient that the advice is individualized to, or specifically directed to, the recipient for consideration in making investment or management decisions regarding plan assets. 25

26 Impact on Retirement Plan Advisors How will the DOL proposal affect a plan adviser's ability to get new business? The transparency created by the DOL's proposed rule will increase the frequency of RFPs conducted in our space. Will spark much-needed conversations between existing advisors and plan sponsors on fee models. Will help honest plan advisors gain even more trust from their clients while also revealing dishonest advisor practices, spurring turnover in the space. New contracts that the DOL proposal will require plan sponsors to sign will open doors for new advisors to enter. Plan sponsors will need to acknowledge in writing all potential conflicts of interest, as well as their full understanding of their advisor's services and fees. 26

27 Marcia Wagner DOL and Fiduciary This guts a lot of FINRA arbitration, Marcia Wagner, managing director of The Wagner Law Group, said. It gives the tort bar open reign; this is opening the floodgates of the tort bar to ERISA. 27

28 Fred Reish - What s on Everyone s Mind Over the last few months, the most common questions asked by clients... and most of my work have been about three issues: The DOL s new fiduciary proposal... not surprising. Capturing rollovers from retirement plans. Again, not surprising because of the large amount of money coming out of plans and in light of the attention being given to rollovers by the SEC, FINRA, DOL and GAO. The use and allocation of revenue sharing in 401(k) plans. 28

29 How can Fiduciary Outsourcing Help? 29

30 Why Outsource Fiduciary Services Your broker-dealer or RIA won t let you serve in a fiduciary capacity. You don t want to take on the role. Plan sponsor wants to reduce their risk. Violation of prohibited transaction for rollovers. A lot of litigation in the press. Provides for better participant outcomes. 30

31 ERISA 3(38) Investment Manager Redhawk Investment Committee Fiduciary Lineups Fee Based Commission Based 31

32 Core Fund Lineup Weighted Scoring 32

33 Fiduciary Lineups Lineups with Choice Fee Based Passive Blended Active Custom ETFs CITs Select Lists Core Fund Lineups Commission Based 25bps 50bps Custom Mutual Funds CITs Portfolio Managers 33

34 Fee Based Lineups Each core lineup contains 16 best-in-class funds Passive Core Lineup 0.24% Active Core Lineup 0.46% Select List Blended Core Lineup 0.34% Custom Core Lineup 16 ETFs and CITs 1 Best-in-Class ETF from Selected Categories Portfolio Manager s CITs QDIA Portfolio Manager s Appropriate Portfolio Quarterly Reporting Custom core lineup created from Select List 34

35 Commission Based Lineups Each core lineup contains 16 best-in-class funds 25bps Core Lineup % Select List 16 Mutual Funds Levelized Compensation 25bps and 50bps Commissions 1 Best-in-Class Mutual Funds from Selected Categories Portfolio Manager s CITs QDIA Portfolio Manager s Appropriate Portfolio Quarterly Reporting 50bps Core Lineup 1.27% Custom Core Lineup Note: average expense ratios do not include portfolios. 35

36 Choose the Level of Fiduciary Outsourcing Fiduciary Outsourcing Services Silver Gold Platinum Reporting Module Investment Monitoring Report Investment Policy Statement (IPS) Contact Center Support Sales Support Module Investment Monitoring Report / Existing Plan Fee Analysis and Benchmarking Report Plan Comparison Report Fiduciary with Full Discretion Module Serves as ERISA 3(21) Investment Advisor Serves as ERISA 3(38) Investment Manager Full Fiduciary Oversight over Investments Advisor Advisor N/A Advisor Advisor N/A N/A 36

37 Fiduciary Outsourcing Fee Schedule Plan Assets Silver Gold Platinum $0 - $9,999, % 0.10% 0.25% $10,000,000 - $24,999, % 0.08% 0.20% $25,000,000 $99,999, % 0.06% 0.15% $100,000,000 - $199,999, % 0.04% 0.10% $200,000,000 or more 0.01% 0.02% 0.05% 37

38 Fiduciaryk Allows you to build better outcomes Simple turn-key solutions Industry leading tools and full-service support Team of nationally renowned providers Comprehensive fiduciary oversight Professionally managed portfolios Diversified investment line-ups Comprehensive participant services Straightforward costs 38

39 Fiduciaryk - Service Providers Financial Advisor Overall plan support Portfolio management services Portfolio Managers Investment Fiduciary Services Fiduciary outsourcing services Plan design, recordkeeping, administration, and supplemental plan consulting services Recordkeeping & Administration Custodian & Trading Plan custodian, trading, and optional trustee services 39

40 Fiduciaryk - Financial Advisor Role Primary Client Relationship Enrollment Meetings and Education Participant One-on-One Retirement Planning Service Summary & Commitment Education Policy Planning Calendar Plan Reviews 40

41 Any advisor can use Fiduciaryk - Advisor Usage You don t have to affiliate with Redhawk. You don t need to have a solicitors agreement with Redhawk. If Redhawk is serving as the ERISA 3(38) Investment Manager agreement directly with the client. Your commissions flow through your broker-dealer as normal. Your advisory fees flow through your RIA as normal. 41

42 Fiduciaryk Site 42

43 Comprehensive Resources/Sales Support 43

44 Sales Resources Investment Monitoring Report Provides an overview of the fund performance and information for the plan. Includes: Executive Summary Portfolio Style Report Performance Summary Fund Criteria Report Fund Fact Sheets Disclosures Signature Page 44

45 Sales Resources Fee Analysis & Benchmarking Provides information on the plan fees and benchmark to the industry - average plan size. Includes: Summary Fee Expense & Revenue Sharing Fee Detail Report Glossary 45

46 Sales Resources Provider Comparison Report Compares the existing plan to up to four new providers. Includes: Plan Composite Return Analysis Plan Expense Comparison Summary Plan Lineup Expense Performance Summary 46

47 Monthly Advisor Webinars Recorded and Posted on Provide Education and Information Fiduciaryk Enhancements Marketplace Updates Regulatory and Compliance Issues Sales & Marketing Ideas Strategic Partnerships Feedback from You on What s Important Comments to: adrienne@redhawkwa.com 47

48 Fiduciaryk Site 48