FIDUCIARY ADVISERS KNOW THE FACTS

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1 FIDUCIARY ADVISERS KNOW THE FACTS There is a significant amount of confusion and misinformation in the marketplace regarding investment advisers ability to relieve plan sponsors of their fiduciary responsibilities and liability. Here is a brief overview of the types of fiduciary advisers, and their fiduciary functions and standards. We ve also included a short questionnaire to help determine an adviser s fiduciary status. Who is a Fiduciary? Under ERISA, a fiduciary is anyone who: Has any discretionary authority or control over the plan s management Has any discretionary authority or responsibility in the administration of the plan Has discretionary authority or control over the management of plan assets Provides investment advice for a fee or compensation Is identified as a fiduciary in the plan document Types of Fiduciaries: Named Fiduciary 3(21) Investment Adviser 3(38) Investment Manager Under the Investment Advisers Act of 1940, 40 Act (always held to a Fiduciary Standard) RIA Fiduciaries Under the 40 Act verses Investment Advisory Representatives (IAR s) under a Broker Dealer RIA Under securities law, financial advisers or financial consultants who are supervised by a broker-dealer are generally considered salespeople and can provide investment advice that is incidental to the securities they are selling. Generally, a broker-dealer is only required to recommend products that are suitable, based on a customer s financial situation, needs, and other security holdings. This requirement has been construed to impose a duty of inquiry on broker-dealers to obtain relevant information from customers relating to their financial situations and to keep such information current. That duty is a lesser duty than the duty of an ERISA fiduciary. Under the SEC 40 Act, advisers are held to a fiduciary standard to act in the best interest of the plan participants and beneficiaries. SEC 40 Act RIA Broker Dealer RIA Standard of Care Fiduciary standard. Suitability standard. Fiduciary Role Best Interest True fiduciary adviser function. May make decisions on hiring and firing of managers. Act in best interest of the participants and beneficiaries. Marketing term/facade of protection. May provide recommendations which are acted upon by client. Suitable, best interest not required. Conflict of Interest Independent, conflict free. Potentially conflicted. Registration SEC registered. Dual registration. Compensation Fee only, level compensation. Fees, commission, 12b-1s and/or Sub Transfer Agent fees and soft dollars. Full disclosure and level compensation not required. Advisory Process Act with skill, care, prudence and due diligence. Business/compensation focused. Marketing Approach Client terminology. Customer terminology. Page 1 of 6

2 FIDUCIARY MYTHS AND FACTS Myth: If an adviser says he or she is a fiduciary to a plan, then the adviser is a fiduciary to the plan. Fact: A fiduciary is determined by actions and function, not by title. 1 Myth: A 3(21) Adviser can give investment recommendations and still be a fiduciary. Fact: Recommendations are not fiduciary functions because there is no discretion or control on the behalf of the Agent, Broker, Consultant or Adviser, so a 3(21) Adviser giving only recommendations is not a fiduciary to the plan. 2 Myth: Bringing on a co-fiduciary can eliminate liability. Fact: Someone can t be a co-fiduciary unless they act in a fiduciary capacity. Assuming someone is a co-fiduciary, that doesn t eliminate the potential for liability; instead, it provides the benefit of shared liability. To reiterate, fiduciary liability and responsibility due to having a co-fiduciary cannot be limited, it can only be shared. 3 Myth: Delegating responsibilities for certain functions to named fiduciaries eliminates liability. Fact: Although delegating certain fiduciary responsibilities to a named fiduciary can eliminate the liability with regard to those delegated functions, there is still a duty to prudently select and monitor that named fiduciary, and potential liability for failing to do so. Myth: A plan can indemnify its fiduciaries from liability. Fact: ERISA voids any arrangement for a plan to indemnify a fiduciary. A plan fiduciary is personally liable for his or her actions (limited to the level personal assets and net worth). 4 Myth: A plan cannot purchase fiduciary liability insurance for its fiduciaries. Fact: The plan can purchase insurance to cover its fiduciaries, or itself, to cover liability for losses occurring by reason of the act or omission of a fiduciary. Beyond that, the plan sponsor or the fiduciaries themselves can also purchase fiduciary liability insurance. Myth: There is nothing available to protect a fiduciary from liability. Fact: There are steps fiduciaries can take to mitigate liability. Fiduciaries can implement prudent documented processes, take advantage of available safe harbors, hire a registered SEC 40 Act Adviser, and have a fiduciary liability insurance policy in place. 6 Myth: There are ways for plan sponsors to relieve themselves of all fiduciary liability. Fact: The plan sponsor is the ultimate fiduciary to the plan. Even if the plan sponsor defrays some fiduciary responsibility to another party, the Plan Sponsor has a duty to monitor the actions of other fiduciaries. Myth: All fiduciaries carry the same amount of responsibility and liability. Fact: Plans can have named fiduciaries; functional fiduciaries and investment advisers act fiduciaries. The fiduciary named in the plan document as the plan administrator has the ultimate responsibility and liability. Other types of named fiduciaries typically carry more responsibility than those not named in the plan document. 7 1 ERISA 3(21) 2 ERISA 3(21) 3 ERISA ERISA ERISA 409(a), ERISA 402(a) 6 ERISA ERISA 402(a), ERISA 3(16) Page 2 of 6

3 FIDUCIARY ADVISER AUDIT Document your fiduciary adviser s responses to the following questions: Type of Fiduciary Are you willing to become a: Fiduciary named in the plan document? Yes No 3(21) investment adviser? Yes No 3(38) investment manager? Yes No Fiduciary under the Investment Advisers Act of 1940? Yes No Do you consider yourself a fiduciary under ERISA with respect to the recommendations you provide the plan? Yes No Will you acknowledge in writing that you have a fiduciary obligation as an investment adviser to the plan when providing consulting services to the plan? Yes No For what specific areas of the Plan are you a fiduciary: Investments? Yes No Recordkeeping? Yes No Administration? Yes No Committee? Yes No Are you registered with the SEC or a state securities regulator as an investment adviser? Yes No If so, have you provided with all disclosures required under law? Yes No Indemnification Will your firm indemnify our organization for litigation damages incurred by our retirement program resulting from your breach of duty to the Plan? Yes No Does your indemnification agreement exclude: Suitability? Yes No Fees? Yes No Performance? Yes No Conflicts of Interest? Yes No Are we allowed to use your ERISA counsel for the defense of any complaint? Yes No Do you indemnify us for legal expenses if the case is settled? Yes No Do you indemnify us for legal expenses if the case is dropped? Yes No Is there any limit relative to the amount of indemnification? Yes No Do you have a Fiduciary Liability Insurance policy? Yes No What are the limits? What is your total net worth? $ Page 3 of 6

4 FIDUCIARY ADVISER AUDIT (CONTINUED) Conflicts of Interest Do you or anyone in your firm accept payment for meals, entertainment, travel, or training from any providers or fund companies? Yes No Are you affiliated with a broker dealer? Yes No Do you accept commissions or 12b-1 fees as payment for fiduciary services? Yes No Do you or a related company have relationships with money managers that you recommend, consider for recommendation, or otherwise mention to the plan for consideration? Yes No If so, describe those relationships. Do you or a related company receive any payments from money managers you recommend, consider for recommendation, or otherwise mention to the plan for consideration? Yes No If so, what is the extent of these payments in relation to your income? Do you have policies or procedures to address conflicts of interest or to prevent payments or relationships from being considered when you provide advice to your clients? Yes No If you allow the plan to pay your consulting fees using the plan s brokerage commissions, do you monitor the commissions and alert the plan when consulting fees have been paid in full? Yes No If not, how do you ensure that the plan is not overpaying its consulting fees? If you allow a plan to pay your consulting fees using the plan s brokerage commissions, what steps do you take to ensure that the plan receives the best execution for its securities trades? Do you have any arrangements with brokers-dealers under which you or a related company benefit if money managers place trades with those broker-dealers? Yes No Signature Print Name Date Title Page 4 of 6

5 PRACTICES OF FIDUCIARY INVESTMENT ADVISERS A well experience named, investment fiduciary adviser can help plan sponsors and committees manage the daunting task of achieving sufficient portfolio growth for beneficiaries while protecting capital. As a steward of the investments, a fiduciary investment adviser should employ a sound management process including the following: Obligations, Needs and Constraints Is there a process to discern the needs and risk tolerance of the beneficiaries? What are the projected obligations (cash flows)? Are the obligations sensitive to economic factors such as inflation and interest rates? What levels of losses would impose a severe hardship on the organization? Is the portfolio subject to legal minimum funding standards? Does the organization have access to additional sources of funding (such as contributions from a plan sponsor)? Are these funding sources exposed to adverse developments in the capital markets? Development of Investment Strategy Is there an effective process to translate an understanding of the organization's needs into a long-term investment strategy? How does the fiduciary investment adviser test the risks and returns of different investment strategies relative to the organization's needs? Does the fiduciary investment adviser have access to a model that can test the risk/return trade-offs of different investment strategies? Does the asset allocation model account for risk properly? Does the model account for "left tail" risk - the markets' propensities to experience large losses with greater frequency than many standard approaches predict? Can the model accommodate the organization's unique cash flows (withdrawals and deposits) to project future portfolio values under different scenarios? In the case of a pension plan, does the model integrate assets and liabilities? Can the model project a range of liabilities based on changes in interest rates? Can the model: project a range of interest rates? project for a range of different quality and maturity sectors? project returns for U.S. Treasury Inflation Protected Securities (TIPS)? Does the model accommodate inflation? How does it forecast inflation? Can the model accommodate alternative investments such as hedge funds, private equity, real estate and commodities? How does the adviser determine the future risks and returns of the capital markets? Are the capital market assumptions reasonable? Do they reflect current conditions? Portfolio Construction Is there a rigorous process for constructing a portfolio (selecting specific managers and vehicles) following the development of the overall strategy (asset mix)? How does the fiduciary investment adviser discern whether the manager follows a sound process based on a compelling investment thesis? How does the fiduciary investment adviser evaluate a manager's organization and investment process and report this information back to the committee? Source: GBS Investment Consulting, LLC a division of Gallagher Benefit Services, Inc. Page 5 of 6

6 PRACTICES OF FIDUCIARY INVESTMENT ADVISERS Portfolio Monitoring Does the strategy still make sense given current market conditions and the plan s needs? Is there a procedure to monitor changes in a manager s organization and process? How does the fiduciary investment adviser determine whether the manager complies with investment guidelines? How does the fiduciary investment adviser measure the manager's risk and performance? Does the fiduciary adviser have a competitive fee schedule from the manager? How can one discern whether the manager's key principals are still motivated? Is there overlap among investment strategies? Are the manager's interests aligned with the plan s interests? Does the manager have effective financial and compliance controls? Education Do the fiduciaries receive investment education and market updates? Is the education from an objective source? Is it rigorous? How can fiduciaries stay informed regarding best practices? Source: GBS Investment Consulting, LLC a division of Gallagher Benefit Services, Inc. Gallagher Retirement Services is the national retirement plan services and consulting division of Gallagher Benefit Services, Inc. Securities and investment advisory services offered through NFP Securities, Inc., a Broker/Dealer and Member FINRA/ SIPC and a Federally Registered Investment Adviser. Investment advisory services and corresponding named fiduciary services may also be offered through GBS Investment Consulting, LLC (GBS IC), a Registered Investment Adviser and wholly owned subsidiary of Gallagher Benefit Services, Inc. Not all individuals of Gallagher are registered to offer Securities or Investment Advisory services through NFP Securities, Inc. NFP Securities, Inc. is not affiliated with Gallagher Benefit Services, Inc., GBS Investment Consulting, LLC, or Gallagher Retirement Services. Neither Gallagher Benefit Services, Inc., Gallagher Retirement Services, GBS Investment Consulting, LLC, nor NFP Securities, Inc. provide legal or tax advice. Alternative investments are often speculative, lack liquidity, lack diversification, are not subject to the same regulatory requirements as mutual funds, may involve complex tax structures and delays in distributing important tax information, and may involve substantial fees. These products often execute trades on non-u.s. exchanges. Investing in foreign markets may entail risks that differ from those associated with investments in U.S. markets. These investments may not be appropriate for all investors. Page 6 of 6

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