401K Plan Fee Regulations: From Paper to Practice

Transcription

1 401K Plan Fee Regulations: From Paper to Practice FEATURED FACULTY: Matthew I. Whitehorn, Esq., Partner, Dilworth Paxson LLP Elizabeth J. Goldstein, Esq., Partner, Dilworth Paxson LLP Richard A. Smolen, Esq., Associate, Dilworth Paxson LLP

2 Matthew Whitehorn, Partner, Dilworth Paxson LLP Matthew Whitehorn is a Partner in the Employee Benefits Group, at the Dilworth Paxson LLP law firm in Philadelphia, Pennsylvania. Mr. Whitehorn works with clients on a broad range of benefit issues including: ERISA and fiduciary requirements compliance reviews of qualified retirement plans, nonqualified deferred compensation plans and compliance with Code Section 409A requirements, Form 5500 return preparation pension plan design/tax consulting, plan terminations/pbgc issues, IRS/DOL Correction Program submissions, employee benefit plan governance, Taft-Hartley/multi-employer plans, IRS plan audits and other tax controversy matters and DOL examinations, governmental & tax exempt employer pension and 457(b) plans & 403(b) plans, health and welfare plan issues/cafeteria plans, employee benefits issues in mergers & acquisitions. Matt has a BA degree from The Johns Hopkins University and law degrees from both Villanova University (JD) and Temple University (LL.M. in Taxation). Richard Smolen, Associate, Dilworth Paxson LLP Richard Smolen is an Associate in the Employee Benefits, Tax, Philanthropic, and Trusts & Estates Groups at the Dilworth Paxson LLP law firm in Philadelphia, Pennsylvania. Mr. Smolen focuses his practice on a broad range of tax areas, including: Representation of non-profit organizations, charitable planning, corporations, partnerships, and individuals, as well as trusts and estates. He has expertise working on matters involving formation and governance of tax-exempt organizations, charitable giving, and family tax planning. Rich has a BA from The University of Pennsylvania, and MBA, JD and LL.M. (taxation) degrees from Temple University. Elizabeth Goldstein, Partner, Dilworth Paxson LLP Ms. Elizabeth Goldstein business clients on executive and director compensation matters such as deferred compensation and restricted stock plans. Liz's experience also includes, assisting employers with qualified and non-qualified retirement plans including 401(k), 457(b), and 457(f) plans and welfare plans (including cafeteria, dependent care, health FSAs, HRAs, and HSAs). This includes advising employers on responding to benefits claims, answering questions regarding the extension of health care under COBRA, drafting employee communications, and complying with HIPAA privacy and security rules and worker classification.

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4 401(k) PLAN FEE REGULATIONS: FROM PAPER TO PRACTICE Title Goes Here Center for Competitive Management Subtitle Philadelphia, Goes PA Here Matthew I. Whitehorn, Esq Elizabeth J. Goldstein, Esq Richard A. Smolen, Esq Presenter s Name Here Dilworth Paxson LLP Date Philadelphia, Goes PAHere 401(k) Plan Fees Background ERISA/DOL Regulations Fiduciary duties defraying reasonable plan administration expenses Prudence prudent expert standard (a person familiar with such matters) Important New Case 2 1

5 401(k) Plan Fees Background Tussey v. ABB, Inc. (No. 2:06-CV-04305, 2010 U.S. Dist. LEXIS [W.D. Mo. 3/31/2012]) Class action; breach of fiduciary duty suit filed by current/former participants under ABB s 401(k) plans against plan committee (fiduciary) and Fidelity Trust (bundled recordkeeper) Self-directed 404(c) plan with Fidelity Fidelity received: Hard-dollar fee per capita/transactions revenue sharing /12b-1 fees from investment option providers; fees debited from participant accounts without specific notice 3 401(k) Plan Fees Background Motion to dismiss denied with a finding that failure to disclose 12b-1 fees not fiduciary breach because not explicitly required by ERISA or DOL 4-week bench trial $37 million dollar judgment for plaintiffs Primary holding: Failure to follow detailed investment policy statement ( IPS ) (i.e., 12b-1 fees should be used to reduce or offset administrative service costs attributable to plans per the terms of the IPS) Funds paying revenue sharing selected over those that did not (lower expense ratio) 4 2

6 401(k) Plan Fees Background 5 Other significant findings: ABB failed to monitor costs and negotiate appropriate rebates No calculation of 12b-1 fees by ABB ABB failed to consider outside independent thirdparty advice that 12b-1 fees charged exceeded going market rates 12b-1 fees were used to reduce ABB payroll and recordkeeping costs for its health and pension plans (benefitting ABB rather than the plans participants) 401(k) Plan Fees Background Investment options more favorable to plans participants were removed, while more expensive share classes were added No prudent deliberation by Plan Committee occurred when investment options were replaced Float interest on moving funds received by Fidelity should have been treated as assets of the plans fiduciary breach 6 3

7 401(k) Plan Fees Background Court also raised, but did not opine on, the fairness of certain participants accounts being assessed with 12b-1 charges paying administrative costs for participants not participating in 12b-1 fee-paying funds 7 401(k) Plan Fees Background Takeaways Is the Tussey v. ABB case really that alarming? Is it time to panic? 8 4

8 401(k) Plan Fees Background Decision likely to be appealed by ABB and Fidelity, but no appeal has been filed to date 9 401(k) Plan Fees Background Lessons: Fiduciaries should adhere to IPS (but IPS should be updated and reflect actual operational practice, so liability is not increased where the IPS is not followed in actual operation) How much detail should there be in IPS? Is less preferable to more? 10 5

9 401(k) Plan Fees Background Fiduciary procedural prudence/due diligence critical, especially where 12b-1 fees are involved Fiduciary must document its decision-making process Fiduciary should follow best practices in plan administration Be aware share class cost issues (e.g. institutional v. retail) 11 Final DOL ERISA 408(b)(2) Regulations ERISA 408(b)(2) provides that contracting or making reasonable arrangements with a party in interest for office space, or legal, accounting, or other services necessary for the establishment or operation of the plan, if no more than reasonable compensation is paid therefor is not a prohibited transaction ( PT ) under ERISA Transparency goal covered plans [certain 403(b) plans grandfathered] Plan sponsors act as deemed compliance monitors Non-compliance results in a PT with potential excise tax 12 6

10 Final DOL ERISA 408(b)(2) Regulations 408b-2 regulations effective as of July 1, 2012 Covered service provider must provide disclosure to responsible plan fiduciary Plan administrator of participant-directed plan must make 404a-5 regulation disclosure on the plan participant-level 13 Final DOL ERISA 408(b)(2) Regulations 14 Covered service providers [those which reasonably expect to receive $1,000 or more in direct or indirect compensation] Fiduciary of look-through investment - pooled separate account/common or collective trust investment vehicle with direct plan equity investment (holds plan assets) 7

11 Final DOL ERISA 408(b)(2) Regulations 15 Platform recordkeeper or broker of a participantdirected plan with designated investment alternatives Service providers receiving indirect compensation other than for plan or plan sponsor or covered service provider CPA, actuary, appraiser, banker, investment consultant, investment advisor, lawyer, TPA, valuation expert, recordkeeper, broker, consultant, etc. Final DOL ERISA 408(b)(2) Regulations De minimis non-monetary compensation valued at $250 or less in the aggregate is ignored 16 8

12 Final DOL ERISA 408(b)(2) Regulations Indirect compensation Any source other than plan, plan sponsor, covered service provider or an affiliate Can be a good faith estimate 17 Final DOL ERISA 408(b)(2) Regulations 18 Required disclosures Shareholder-type fees Fees charged directly against investment not included in plan s annual operating expenses: Commissions Sales charges/deferred charges Redemption fees Surrender charges Exchange, account, purchaser fees 9

13 Final DOL ERISA 408(b)(2) Regulations Expense ratio and ongoing fees Wrap fees Mortality fees Experience fees 19 Final DOL ERISA 408(b)(2) Regulations Participant fee disclosure information (only applies to participant-directed plans) whatever is required under 404a-5 regulations Identifying information Performance data Benchmark comparisons Expense ratio information Website reference for supplemental information 20 10

14 Final DOL ERISA 408(b)(2) Regulations 21 Timing of Disclosure Contracts/agreements in place on or before July 1, 2012, had to be modified by July 1, 2012 New contracts/agreements after July 1, 2012, reasonably in advance of execution Update for changes 60-day limit, except investment information annually New designated investment alternative: ASAP, but not later than availability under the plan Final DOL ERISA 408(b)(2) Regulations Relief Prohibited transaction can result in substantial liability of plan fiduciaries Covered service providers To avoid PT treatment correct error or omission within no later than 30 days of discovery 22 11

15 Final DOL ERISA 408(b)(2) Regulations Plan fiduciaries personal liability/prohibited transaction Engage a professional to assess 408(b)-2 reasonableness compliance? Cost of outside experts plan or plan sponsor obligation? 23 Final DOL ERISA 408(b)(2) Regulations Fiduciary cannot know that covered service provider failed to disclose information and reasonably believe it was properly disclosed (monitor) Fiduciary makes written request for information upon discovery of non-compliance If covered service provider fails to comply within 90 days of written request, fiduciary must tell DOL Sample of notice to DOL is available on DOL website Does ERISA fiduciary liability policy cover 408(b)-2 failures? 24 12

16 Final DOL ERISA 408(b)(2) Regulations Fiduciary must terminate arrangement if the covered service provider fails to provide requested information relating to future services consistent with fiduciary prudence duty 25 Final 404(a)-5 Regulation Participant-Level Disclosures ERISA fiduciary subject to prudent expert standard DOL FABs and R provide useful interpretation of Regs. First annual disclosure notice was due by August 30, 2012* (must be written) First quarterly disclosure notice due by November 14, 2012* (may be electronic) 26 * Fiscal year plans have a bit more time 13

17 Final 404(a)-5 Regulation Participant-Level Disclosures Annual disclosure Plan-related information Listing of plan administration and individual expenses (shareholdertype fees) 27 Final 404(a)-5 Regulation Participant-Level Disclosures Investment information about each designated investment alternative ( DIA ) (performance benchmarks, fees, websites, etc.) Plan and investment disclosures do not require that DIAs be listed twice due to overlap; comparative chart satisfies disclosure for each required category Each quarter, plan must disclose plan administration and individual expenses charged to a participant s plan account in the previous quarter 28 14

18 Final 404(a)-5 Regulation Participant-Level Disclosures Revenue-sharing, 12b-1 and sub-t/a fees must be disclosed regardless of whether a particular participant is invested in funds that pay such amounts Any designated investment manager ( DIM ) must be identified ERISA 3(38) investment manager Using a DIM does not constitute a separate DIA (DIM does not need to be listed on the comparative chart) 29 Final 404(a)-5 Regulation Participant-Level Disclosures Type of Plan-Related Disclosure Participant self-direction rules; lose ERISA 404(c) relief without proper fee disclosure DOL FAQs state that good faith effort to comply will not be subject to DOL enforcement action if initial notice/disclosure process has already begun Must comply before next disclosure Limitations on self-direction 30 15

19 Final 404(a)-5 Regulation Participant-Level Disclosures Description of voting rights Identification of DIAs Identification of DIMs Description of brokerage windows (not a DIA, but fee and expenses charged against participant accounts must be disclosed); under original DOL guidance, many participants investing in a certain alternative could have resulted in investment being a DIA per the fiduciary s determination with requisite disclosure (FAB ) 31 Final 404(a)-5 Regulation Participant-Level Disclosures 32 In more recent DOL guidance (FAB R [7/30/2012]), the original position has been revised to the effect that brokerage windows and self-directed brokerage accounts are not DIAs if the underlying investments themselves are not DIAs However, plan fiduciary must still monitor these arrangements to ensure the quality of service being provided meets ERISA standards Still unclear what actions plan fiduciary must take regarding such arrangements, for example, duty of loyalty and prudence issues i.e., how many brokers to offer, what is an appropriate level of services fees, etc. - open issues 16

20 Final 404(A)-5 Regulation Participant-Level Disclosures for Self- Directed Individual Account Plans and (continued) Model Portfolio/DIA Asset Allocation Programs are not themselves DIAs, unless they consist of investments individually not offered under subject plan or if model purchases equity security interest, unit participation or similar interest in an equity investment, then it can be a DIA 33 Final 404(a)-5 Regulation Participant-Level Disclosures Change Notice Plan administrator must provide notice of midyear plan-related information changes Mid-year changes in administration expense disclosures must be reported in annual notice (not quarterly statements) 34 17

21 Final 404(a)-5 Regulation Participant-Level Disclosures For mid-year changes in investment disclosures (comparative chart), no notice required, except where the chart is also used to satisfy planrelated information disclosure requirements and plan-related information changes (e.g., change in DIAs) 35 Change in DIA requires listing of shareholdertype (individual) expenses (back-end charges, redemption fees, sales charges) Final 404(a)-5 Regulation Participant-Level Disclosures Required mid-year change notices must be provided days before the effective date of the change, or if due to unforeseeable event or circumstances, ASAP No materiality limitation on disclosure obligation Mid-year plan entrants may be given the last annual disclosure with any mid-year plan-related and expense information changes 36 18

22 Final 404(a)-5 Regulation Participant-Level Disclosures Pre (b) plans are not covered by 404(a)-5 regs. (similar to 408(b)-2 regs. and Form 5500 reporting exemptions) 403(b) plan subject to 403(b) plans subject to final 404(a)-5 regs. Paper clip comparative chart approach where there are multiple providers; but aggregated chart better for participant communication 37 Closed funds information only needs to be disclosed to participants in that fund Final 404(a)-5 Regulation Participant-Level Disclosures Plan administrators should prepare a glossary of terms suitable for their plans particular participants 38 19

23 Final 404(a)-5 Regulation Participant-Level Disclosures 39 Internet website address that automatically discloses DIA information (plan sponsor, recordkeeper, investment alternative) Landing page can link to other sources of supplemental information on investment-related information; information should be reasonably current Failure to comply can result in a prohibited transaction with excise tax Reaction to notice lower fees do not necessarily equate with overall level of service by third-party service providers IRS Circular 230 Disclaimer To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments or hand-outs) is not intended or written to be used, and cannot be used, for the purpose of (a) avoiding penalties under the Internal Revenue Code or (b) promoting, marketing or recommending to another party any transaction or matter addressed herein. Copyright Dilworth Paxson LLP This presentation is provided for information purposes only it is not intended to constitute legal advice