Models of Advisor Fiduciary Responsibility: What Advisors Need to Know

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1 Models of Advisor Fiduciary Responsibility: What Advisors Need to Know Ashish Shrestha Regional Director This information is provided for registered investment advisors and institutional investors and is not intended for public use. Dimensional Fund Advisors is an investment advisor registered with the Securities and Exchange Commission. Please note the information contained herein is intended expressly for discussion purposes only and should not be misconstrued or otherwise interpreted as legal advice or a legal opinion. Interested persons should consult with their own qualified ERISA counsel for more information about the matters addressed herein.

2 Video 1

3 Agenda 1. Key Fiduciary Responsibilities 2. Who Is a Fiduciary? 3. Implementation Models 4. Managing Fiduciary Risk 5. Key Takeaways 2

4 Key Fiduciary Responsibilities

5 Key Elements of Fiduciary Responsibilities Exclusive Benefit Rule Solely in the interest Exclusive purpose Prudent Expert Rule Plan Document Rule Diversification Rule Prohibited Transaction Restrictions 4

6 Fiduciary Responsibilities Key Elements Prudent Expert Rule Using the degree of care that would be used by a person Familiar with such matters In the conduct of a like enterprise with like aims Decisions must reflect: Care Skill Prudence Diligence Documented evidence of these key elements is the best evidence of a prudent process. 5

7 Fiduciary Responsibilities Recap of Key Principles The law (ERISA) focuses primarily on process, not results. Fiduciary decisions must be made with only the participant s interest in mind. Fiduciaries may not act when they have conflicts of interests Fiduciaries must be knowledgeable regarding their areas of responsibility or hire independent professional advisors. ERISA includes provisions permitting transfer and delegation of certain responsibilities and attendant liabilities to qualified third parties. 6

8 Implications of Fiduciary Roles Fiduciary Liability for Breach of Duties A fiduciary who breaches any of the fiduciary duties has personal liability to restore to the plan any losses that result from the breach and to restore any profits acquired through the fiduciary s use of plan assets. Fiduciaries may also be liable as co-fiduciaries for knowing participation, enabling other fiduciaries to commit a breach, or knowledge of a breach, without taking efforts to remedy the breach. ERISA prohibits a plan from agreeing to relieve a fiduciary from responsibility or liability, or from agreeing to indemnify a fiduciary for losses resulting from a breach of fiduciary duty. 7

9 Who Is a Fiduciary?

10 You Are a Fiduciary If You: Governing Fiduciaries (board of directors/trustees) Are a named fiduciary under the plan document. Typically the plan sponsor, a committee, or individual (usually identified by title) Are the trustee or ERISA administrator of the plan. Managing Fiduciaries (pension, benefits, and investment committees) Have discretionary authority or control over plan administration, including authority to hire investment managers and other service providers. Operating Fiduciaries (investment managers, custodians, financial advisors, and internal personnel) Exercise authority or control over management or disposition of plan assets. Provide investment advice to a plan for a fee. 9

11 Fiduciary Responsibility and Financial Advisors Non-Fiduciary ERISA 3(21) Fiduciary (Limited Scope) ERISA 3(38) Fiduciary No explicit acknowledgement of fiduciary responsibility with respect to the plan or its participants May be subject to conflicts of interest Has authority to render investment advice to plan sponsor for compensation with respect to plan assets Sole discretion for the investment options, such as mutual funds or model portfolios, placed on a plan s menu Agrees to adhere to a fiduciary standard and is thereby subject to solely in the interest, prudence, and exclusive purpose responsibilities Broadly speaking, advisors may service 401(k) plans while assuming varying levels of fiduciary responsibility. Must be a bank, insurance company, or RIA 10

12 Fiduciary Responsibility and Financial Advisors ERISA 3(21) Fiduciary (Limited Scope) ERISA 3(38) Fiduciary Fiduciary status Fiduciary with respect to investment advice to other fiduciaries Fiduciary with respect to selection, monitoring, and replacement of investment What it means to advisors... What it means to plan sponsors... Fiduciary responsibility for quality of advice and recommendations Limited sharing of fiduciary responsibility mitigating conflicts of interest Fiduciary responsibility for investment decisions and implementation of investment program Delegation of investment management responsibilities Fiduciary responsibility can effectively be delegated, but prudence of delegation and duty to monitor remain. 11

13 Fiduciary Responsibility and Financial Advisors Non-Fiduciary ERISA 3(21) Fiduciary (Limited Scope) ERISA 3(38) Fiduciary 12

14 Delegation of Fiduciary Responsibilities Recap A certain amount of fiduciary responsibility can be delegated: An ERISA Section 3(21) limited scope fiduciary may advise other fiduciaries about investments. An ERISA Section 3(38) investment fiduciary may manage plan assets. Remember, fiduciary responsibility can effectively be delegated, but prudence of delegation and duty to monitor remain. Even if not formally named as a fiduciary, a person or third party may be considered a fiduciary based on his or her function and actions taken for the plan. 13

15 Implementation Models

16 Advisor In-House Solution Plan Sponsor Advisor can act as the: Non-Fiduciary Advisor OR Financial Consultant ERISA Section 3(21) Limited Scope Fiduciary: Render advice on investment menu options and/or administration of the plan. OR Investments Third-Party Administrator Recordkeeper Custodian ERISA Section 3(38) Investment Fiduciary: Discretion over management of plan assets (i.e., model portfolios). By law, a 3(38) must be an RIA, bank, or insurance company. The information contained herein is intended expressly for discussion purposes only and should not be misconstrued or otherwise interpreted as legal advice or the legal opinion of qualified ERISA counsel. 16

17 Advisor-Outsourced Solution Plan Sponsors Board Committee Staff Financial Advisor Turnkey Service Provider Trust Custodian TPA/ Recordkeeper Investment Manager 17

18 Advisor-Outsourced Solution Plan Sponsor Financial Advisor Advisor manages the relationship with the plan sponsor and acts as the: Non-Fiduciary Advisor OR ERISA Section 3(21) Limited Scope Fiduciary Turnkey Service Provider Investments Third-Party Administrator Recordkeeper Custodian Turnkey Service Provider: Generally acts as a managing fiduciary and as a 3(38) investment fiduciary Selects and monitors the investment program Manages and oversees relationships with administrative providers Provides marketing, education, and servicing support 18

19 Managing Fiduciary Risk

20 Managing Fiduciary Risk Process, Process, Process... Plan-related documents should clearly allocate responsibilities among qualified fiduciaries. Fiduciary actions must be properly documented. Establish a fiduciary oversight process. Compliance with ERISA 404(c). 20

21 Managing Fiduciary Risk Documentation, Documentation, Documentation... Following carefully considered policies may demonstrate compliance with fiduciary responsibilities. Adopt and follow written procedures regarding: Use of plan assets. Vendor selection and monitoring. Investment policy. Avoiding conflicts. Documentation and document retention. 21

22 Selection of Plan Investments Initial selection of investments and asset classes must be based on the interests of participants as a whole and the purpose of the plan. For participant-directed plans, provide investment options that are diversified to minimize the risk of large losses. Have a clear understanding of why you have the specific mix of asset classes. Document the selection process. Use institutional class funds. No explicit requirement to select best in class, but duty of prudence. Diversification neither guarantees a profit nor prevents a loss. 22

23 Ongoing Monitoring of Plan Investments Establish a regular oversight process. Document in an investment policy statement. Meet regularly for detailed review. Determine the scope of reliance on an independent advisor. Standard of review. Benchmark performance against multiple factors The appropriate index The most appropriate peer group Appropriate time horizon focus on long term Only reviewing performance against an index is not sufficient Should consider quantitative and qualitative factors 23

24 Plan Investments and Fiduciary Due Diligence Passive solution may offer efficiencies over active solution with respect to fiduciary risk management. Investment selection Ongoing due diligence and monitoring Prudence 24

25 Key Takeaways

26 Key Takeaways 1 ERISA emphasizes process and documentation. 2 A certain amount of fiduciary responsibility can be delegated. 3(21) limited scope co-fiduciary. 3(38) investment fiduciary. 3 Choosing the right service providers for your practice is an important part of managing fiduciary risk and streamlining your 401(k) business. Decide on your role relative to the plan sponsor; then outsource the rest. In-house or turnkey solution. 28

27 The Opportunity Legislation and Litigation the Current Climate The state of our retirement plan system has caught the attention of the courts, regulators, and legislators. Areas of focus for potential reform include: Fee disclosure and transparency. Limiting use of high-cost retail funds. Participant investment advice. Target-date funds. Recent litigation has occurred over issues such as: Excessive fees. Conflicts of interest. Participant retirement assets concentrated in employer s company stock. 26

28 Trend toward Transparency and Lower Fees Wall Street Journal March 6, [courts recently] seem to be suggesting there are conflicts beneath the surface that need to be made more transparent... Eleanor Laise, "Earlier Retirement: Beating Back High Fees," Wall Street Journal, March 6, #11352

29 Employee Allegations of Excessive 401(k) Fees Gain Ground July 28, The Edison case is one of more than two dozen lawsuits filed against U.S. employers in recent years. The suits allege that companies allowed 401(k) providers to stuff the plans with high-cost investments in exchange for reducing the administrative costs paid by the employers themselves It's frustrating and disappointing that you expect to be treated honestly and fairly, and when you find out that you're not you almost feel cheated," said Suhadolc, a former maintenance mechanic at an Edison subsidiary in Illinois... In the Edison case, Judge Wilson ruled that the company should have offered employees less costly "institutional" shares of the mutual funds in its plan rather than the normal "retail" shares available to regular investors. Walter Hamilton, Employee Suits Alleging Excessive 401(k) Fees Gain Ground, Los Angeles Times, July 28, #11352

30 401(k) Fair Disclosure and Pension Security Act H.R Passed June 2009 by the House Education and Labor Committee Combines H.R (fee disclosure) and H.R (investment advice) The intent of the bill: Require fee disclosure in dollars per participant as well as plan levels broken down in four categories: administrative fees, investment management fees, transaction fees, and other. Ensure the participant gets objective financial advice without any conflict of interests. Provide the participant with education on investing, including the understanding of investment options. Require the offering of at least one low-cost, passive vehicle. Adjust pension funding rules, addressing funding issues that might arise in periods of economic crisis. Source: House Education and Labor Committee press release, June 24, #11352

31 e Emergence of e Independent Investment Advisor Investment News June 28, 2009 The House Committee on Education and Labor s bill... includes a provision that may restrict 401(k) plan sponsors to hiring only independent advisers to counsel their plan participants. Mark Bruno, "Bill would give inide advisers sole right to offer 401(k) advice," Investment News, June 28, #11352 In particular, independent advisers who would qualify under the rules account for just 5% of the total population of more than 200,000 retail advisers and registered representatives in the United States... 6

32 Department of Labor Disclosure Regulations Recent Changes 1. Disclosure to the government Form 5500 Schedule C for service provider information substantially revised for 2009 returns. As a general rule, the plan must report direct and indirect compensation, services for those fees, and the identity of persons receiving payments. 2. Disclosure to plan fiduciaries Department of Labor regulation 408(b)(2). 7 #11352

33 #11352 Service Providers, Fee Disclosures to Plan Sponsors Department of Labor Regulation 408(b)(2) Purpose is to provide fiduciaries with the information they need to fulfill their mandate under ERISA. It requires disclosures in writing of information relating to fees, all direct and indirect compensation, and potential conflicts of interest. The regulation would apply to covered service providers 1 that provide investment advisory services, recordkeeping, TPA, banking, etc. The new disclosure regulations would require the covered service providers 1 to describe the services they perform and their fiduciary capacity, as well as the compensation received and how it is received. How advisors can prepare ahead for the upcoming rule: Evaluate your exposure and fiduciary status. Review model service contracts to include DOL disclosure requirements. Seek legal advice or leverage 401(k) turnkey providers. Educate staff. Effective July 16, Covered service providers would reasonably expect to receive at least $1,000 in direct or indirect compensation. For illustration purposes only. Does not represent legal advice. Source: Department of Labor and Fiduciary Benchmarks. 8

34 Department of Labor Disclosure Regulations Recent Changes 1. Disclosure to the government (final) Form 5500 Schedule C for service provider information substantially revised for 2009 returns. As a general rule, the plan must report direct and indirect compensation, services for those fees, and identity of persons receiving payments. 2. Disclosure to plan fiduciaries (final) Department of Labor regulation 408(b)(2). 3. Disclosure to plan participants (interim final) Issued October 20, 2010 and effective for plan years starting one year later. 9 #11352

35 Regulation to Improve Fee Transparency to Plan Participants Information must be provided to participants in percentages, as well as dollars for fees paid from their plan assets. Plan administrator is ultimately responsible for implementation. Electronic delivery is being considered. Information that must be disclosed: Plan-related information: general information, plan administration expenses, etc. Investment-related information: performance relative to benchmark (1, 5, 10 years), fees and expenses, glossary, and web resources. Investment information must be provided in a comparison format in advance of participant investment and annually thereafter. The implementation of the new disclosure will typically be done by administrative service providers. Source: Department of Labor. 10 #11352

36 Department of Labor Disclosure Regulations Recent Changes 1. Disclosure to the government (final) Form 5500 Schedule C for service provider information substantially revised for 2009 returns. As a general rule, the plan must report direct and indirect compensation, services for those fees, and identity of persons receiving payments. 2. Disclosure to plan fiduciaries (final) Department of Labor regulation 408(b)(2). 3. Disclosure to plan participants (interim final) Issued October 20, 2010 and effective for plan years starting one year later. 4. Disclosure of fiduciary status (proposed) Released October #11352

37 Redefining Fiduciary Responsibilities Department of Labor Proposed Rule, October 2010 Plan sponsors will have clarity on the level of fiduciary undertaken by various providers. Many plan sponsors are unaware of the true fiduciary status of advisors, and in many cases advisors were not giving advice in a fiduciary capacity. Advice versus product sales Even incidental advice could lead to fiduciary status Type of advice not as relevant as the fact that advice is provided. Source: Department of Labor. 12 #11352

38 Department of Labor Disclosure Regulations Recent Changes Significant changes to disclosures will benefit plan fiduciaries and participants in the long run. The new rules will level the playing field and bring to light hidden costs, provider arrangements, and conflicts of interest of which plan sponsors might have not been aware. Advisors are well positioned to successfully compete in this new environment. Independence Transparency No conflicts of interest Low cost Open architecture Focus on participant services and education Professionally managed allocations Fiduciary outsourcing solutions For illustration purposes only. 13 #11352

39 Advisor 401(k) Marketplace Opportunities Diversifying sources of revenue Rebuilding asset base Regular cash inflows Sticky money if done properly Generating wealth management leads Increasing the value of the firm Building stronger relationships with clients Added value on the wealth management side Increasing demand for these services from smalland mid-sized businesses Changing tide in the marketplace and the compelling value proposition of the independent advisor Challenges Familiarity with marketplace Knowing and keeping up with regulations Contracts and legal plan documents Efficient allocation of resources Longer sales cycle Losing wealth management focus Reliance on third-party administrators Margins on 401(k) business if not done right Level of time commitment Servicing participants with various asset levels Potential fiduciary liability Cost of additional insurance and ERISA bond Initial cost and resources of setting up staff, systems and processes 15 #11352

40 Old Style vs. Modern Retirement Plans Plan investment advisor/broker Old Style Retirement Plan Salesperson without ERISA expertise; focus on distribution of financial products Modern Retirement Plan Provide independent investment consulting, advice, and solutions Fees transparency Typically not easy to determine, especially in bundled providers Full fee disclosure Plan investments Retail or proprietary products Access to institutional pricing Participant options Focus on funds Focus on model portfolios and retirement income solutions Ongoing service Fiduciary relationship with plan sponsor Nature of advice Minimal to nonexistent (salesperson) Commercial suitability standard, not held to a fiduciary standard, (i.e., caveat emptor) By regulation, client advice is incidental to manufacturing and selling investment products Scheduled, structured, and documented process (fiduciary) Held to a fiduciary standard, via written contract; must act in their client s best interest Provides conflict-free advice to its clients 14 #10742

41 The Opportunity Plan Sponsor Need Advisor Solution Management of fiduciary responsibility Ability to explicitly assume various levels of fiduciary responsibility as delegated by plan sponsor Alignment of interests Management of plan costs and fee arrangements Very competitive, fully transparent pricing Simple lowcost structure Enhanced participant education and communication Ability to provide education and/or guidance to appropriate model portfolios, especially as 3(38) fiduciary Participant paternalism Transparent, passive, low-cost, advisor-centric model philosophically aligned with current environment. 27

42 Your Value Proposition to a Plan Sponsor By delegating fiduciary responsibility to an advisor, a plan sponsor can: Focus on running his or her business. Attract and retain talented employees. Take advantage of the tax benefits of a 401(k) plan. Manage fiduciary liability. Do the right thing for participants. 29

43 Questions?

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