Considerations in the Use of Self-Directed Brokerage Accounts in Participant-Directed 401(k) Plans

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1 Considerations in the Use of Self-Directed Brokerage Accounts in Participant-Directed 401(k) Plans Chuck Rolph, J.D. Director, Advanced Consulting Group Nationwide Financial Background Today's typical qualified retirement plan is structured as a profit-sharing plan that includes a cash or deferred arrangement ("CODA"), some level of employer matching contribution, and a discretionary employer contribution feature. This typical plan design is referred to as a "401(k) plan" because the CODA is described in subsection (k) of Internal Revenue Code ("Code") section 401. In terms of responsibility for investing the assets, the responsible plan fiduciary typically specifies that the participants will do so, in order to: (i) provide the participants with more choice concerning their investment options; and (ii) help mitigate fiduciary liability associated with investment outcomes. In this paper, we will use the term "participant-directed plan" to describe such a plan. Focus of This Paper In the context of a participant-directed plan, we will explore the implications of adding a selfdirected brokerage account ("SDBA") or mutual fund window to the plan in terms of fiduciary liability considerations and anticipated investment outcomes. In doing so, we will assume that the reader is familiar with the following concepts: (i) ERISA section 404(c); (ii) qualified default investment alternatives ("QDIAs"), and (iii) fund selection for the core fund lineup and fund mapping. If the reader is interested in learning more about these topics, they are covered in detail in a separate white paper on ERISA section 404(c). Investment Structure of the Typical Participant-Directed Plan The typical participant-directed plan consists of a menu of funds (commonly referred to as the "core fund lineup") selected by the trustee or other named fiduciary (if the trustee is a directed trustee) and some QDIAs. The typical participant-directed plan does not include an SDBA or mutual fund window. If the investment selection is structured as an affirmative choice by participants, then the participants will make their respective selections from among the funds in 1

2 the plan's core fund lineup. If one or more participants fail to make an affirmative selection of investments, then the plan's procedures default the affected participants into the QDIAs. Alternatively, the investment selection could be structured as a negative election, meaning that participants are automatically defaulted into the QDIAs; and, if the affected participants want to elect other funds available in the core fund lineup, they must make an affirmative election to exit the QDIAs. Absent making an affirmative election out of the QDIAs, the affected participants will remain invested in the QDIAs. Fiduciary Aspects of the Investment Structure of the Typical Participant-Directed Plan ERISA section 3(21)(A)(i) provides that a person is a fiduciary with respect to a plan to the extent that he or she exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets. ERISA section 403(a) provides that, unless the assets are invested exclusively in insurance and annuity contracts, all assets of an employee benefit plan must be held in trust by one or more trustees. Such trustee or trustees must be either named in the trust instrument or in the plan instrument described in ERISA section 402(a) or appointed by a person who is a named fiduciary. Upon acceptance of being named or appointed, the trustee(s) have exclusive authority and discretion to manage and control the assets of the plan and are referred to herein as "discretionary trustee(s)." However, if either: (i) the plan expressly provides that the trustee(s) are subject to the direction of a named fiduciary who is not a trustee, in which case the trustee(s) [herein referred to as "directed-trustee(s)"] shall be subject to proper directions of such fiduciary that are made in accordance with the terms of the plan and that are not contrary to the provisions of ERISA; or (ii) authority to manage, acquire, or dispose of assets of the plan is delegated to one or more investment managers pursuant to ERISA section 402(c)(3), then the trustee(s) is (are) not responsible for the investment of the plan's assets. Selection and monitoring of the funds in the plan's core fund lineup is, therefore, a fiduciary function of: (i) the trustee(s), in the case of a discretionary-trustee arrangement; (ii) the named fiduciary, in the case of a directed-trustee arrangement; or (iii) an investment manager, as described in ERISA section 3(38), who has been given authority over all or a portion of the plan's assets. The U.S. Department of Labor ("DOL") issued final regulations in 2010 imposing yet another fiduciary duty on plan administrators [ERISA section 3(16)] of participant-directed plans. These regulations were issued under ERISA sections 404(a)(5) and 404(c) and provide for certain affirmative obligations on the part of the plan administrator to disclose both plan-related and investment-related information to participants in participant-directed plans. A full discussion of these regulations is beyond the scope of this paper. The DOL issued Field Assistance Bulletin ("FAB") R that explains these rules. 2

3 Addition of a Self-Directed Brokerage Account ("SDBA") or Mutual Fund Window to the Investment Lineup of a Participant-Directed Plan Many fiduciaries seek to enhance the utility of a typical participant-directed plan by adding an SDBA or mutual fund window feature to the core fund investment lineup that participants can elect to utilize on an optional basis. Those participants who wish to utilize an SDBA to purchase virtually any investment allowed under the rules of ERISA will select, in accordance with procedures established by the plan administrator, a brokerage account and will use that account to effect purchases of assets beyond those offered in the core fund lineup. The mutual fund window is similar in concept to the SDBA, with the exception that the investment alternatives available through the window are limited to a subset of mutual funds that are outside of the core fund lineup. Any SDBA or mutual fund window that is made available to the participants must be done so on a nondiscriminatory basis; i.e., not only to the select group of management or highly compensated employees. Fiduciary Aspects of the SDBA or Mutual Fund Window Many discretionary trustees and named fiduciaries who provide investment direction to directedtrustees think that, by merely offering an SDBA or mutual fund window as an alternative to the investment selections afforded participants by the core fund lineup, they will be relieving themselves of fiduciary responsibility and liability for the investment selections made by the affected participants who utilize those arrangements. This may not always be the case. The affected fiduciaries in the case of SDBAs and mutual fund windows are not responsible for the investment outcomes of participants who select investments through the SDBA or mutual fund window, provided the requirements of ERISA section 404(c) and the regulations thereunder are scrupulously followed. However, such fiduciaries cannot dispense with their fiduciary duties surrounding the selection and management of the SDBA and mutual fund window options. The DOL's Field Assistance Bulletin ("FAB") R provides guidance for both trustee and plan administrator fiduciaries in terms of their fiduciary duties with respect to SDBAs and mutual fund windows. The salient questions and answers thereof are highlighted, as follows: Q&A-13. Fiduciary Duty of Plan Administrators [ERISA 3(16) Fiduciaries] to Provide Plan- Related Expense Information to Participants. First, a plan administrator must provide a general description of any such window, account, or arrangement. The applicable Code section 404(a)(5) regulation does not state how specific and detailed a description must be to satisfy this requirement. Whether a particular description is satisfactory will depend on the facts and circumstances of the specific plan and the specific window, account, or arrangement. At a minimum, however, this description must provide sufficient information to enable participants and beneficiaries to understand how the window, account, or arrangement works (e.g., how and to whom to give investment instructions; account balance requirements, if any; restrictions or limitations on trading, if any; 3

4 how the window, account, or arrangement differs from the plan s designated investment alternatives) and whom to contact with questions. Second, a plan administrator also must provide an explanation of any fees and expenses that may be charged against the individual account of a participant or beneficiary on an individual, rather than on a plan-wide, basis in connection with any such window, account, or arrangement. This would include: (i) any fee or expense necessary for the participant or beneficiary to start, open, or initially access such a window, account, or arrangement (such as enrollment, initiation, or start up fees), or to stop, close or terminate access; (ii) any ongoing fee or expense (annual, monthly, or any other similarly charged fee or expense) necessary for the participant to maintain access to the window, account, or arrangement, including inactivity fees and minimum balance fees; and (iii) any commissions or fees (e.g., per trade fee) charged in connection with the purchase or sale of a security, including front or back end sales loads if known; but would not include any fees or expenses of the investment selected by the participant or beneficiary (e.g., Rule 12b-1 or similar fees reflected in the investment s total annual operating expenses). If, under the facts and circumstances of a particular arrangement, the exact fees are not known in advance, then a general statement that such fees exist and that they may be charged against the individual account of a purchasing or selling participant or beneficiary, and directions as to how the participant can obtain information about such fees in connection with any particular investment, ordinarily will satisfy the notice requirements of the regulation. Third, a plan administrator also must provide participants and beneficiaries with a statement of the dollar amount of fees and expenses that actually were charged during the preceding quarter against their individual accounts in connection with any such window, account, or arrangement. A statement of these fees must include a description of the services to which the charge relates. The description of the services must clearly explain the charges (e.g., $19.99 brokerage trades, $25.00 brokerage account minimum balance fee, $13.00 brokerage account wire transfer fee, $44.00 front end sales load). Q&A-29. No Fiduciary Duty of a Plan Administrator [ERISA 3(16) Fiduciary] to Provide Investment-Related Expense Information to Participants. As noted above, in the discussion of Q&A-13, plan administrators have a fiduciary duty to provide participants with plan-related expense information, but Q&A-29 points out that there is no corresponding duty to furnish investment-related expense information to participants. This is probably due to the fact that plan administrators would be unable to keep track of all the individual investment decisions being made by the participants who elected to utilize the SDBAs and fund windows. It may also be attributable to the fact that SDBAs and fund windows are not considered to be designated investment alternatives ("DIAs") for which investment-related expense information is required to be provided. 4

5 Q&A-39. ("DIAs"). Status of SDBAs and Fund Windows as Designated Investment Alternatives The fiduciary disclosure requirements under the ERISA section 404(a)(5) regulations generally apply only to DIAs. In Q&A-39, the DOL states that whether an investment alternative is a DIA for purposes of the regulation depends on whether it is specifically identified as available under the plan. The regulation does not require that a plan have a particular number of DIAs, and nothing in FAB R prohibits the use of a platform or a brokerage window, self-directed brokerage account, or similar plan arrangement in an individual account plan. In the case of a participant-directed account plan covered under the regulation, a plan fiduciary s failure to designate investment alternatives, for example, to avoid investment disclosures under the regulation, raises questions under ERISA section 404(a)'s general statutory fiduciary duties of prudence and loyalty. Also, fiduciaries of such plans with platforms or brokerage windows, self-directed brokerage accounts, or similar plan arrangements that enable participants and beneficiaries to select investments beyond those designated by the plan are still bound by ERISA section 404(a) s statutory duties of prudence and loyalty to participants and beneficiaries who use the platform or the brokerage window, self-directed brokerage account, or similar plan arrangement, including taking into account the nature and quality of services provided in connection with the platform or the brokerage window, self-directed brokerage account, or similar plan arrangement. What the DOL appears to be saying in this Q&A-39 is that plan fiduciaries cannot escape fiduciary liability merely by letting participants make their investment decisions through an SDBA or mutual fund window. Analysis of the Pros and Cons of an SDBA or Mutual Fund Window in a Participant- Directed Plan Pros. In the author's personal opinion, there are not many "pros" associated with SDBAs and/or mutual fund windows. One "pro" of such arrangements would be that they offer participants in a participant-directed plan investment choices beyond those available in the plan's core fund lineup. Cons. Again, in the opinion of the author, the "cons" of such arrangements far outweigh the "pros" for the unwary plan sponsor or plan fiduciary. 1. Is the employee population of the plan sponsor sophisticated enough in terms of investment knowledge, so as to be able to take advantage of the SDBA or fund window? Keep in mind that not all participants have to avail themselves of the opportunity to participate in such arrangements, but could employees who lack the investment knowledge to properly utilize these arrangements be participating in them without the knowledge of the plan fiduciary in charge of them and what does that imply for fiduciary liability of the affected plan fiduciary? 5

6 2. Implementing an SDBA or mutual fund window does not lessen the fiduciary liability of the plan fiduciary who authorized such arrangements; in fact, it may increase the fiduciary liability of such individual. See the discussion above in connection with FAB R. 3. In order for these arrangements to operate in a manner that will reduce fiduciary liability for the investment decisions made by participants in a self-directed plan, the applicable plan fiduciary must comply with the ERISA section 404(c) regulations. A complete discussion of the ERISA section 404(c) regulations is contained in a separate white paper, but the applicable inference is that compliance with those regulations is not a simple task; i.e., merely offering a wide variety of available investment options does not transfer the liability for investment decisions from the plan fiduciaries to the plan participants. 4. What is the true cost of such arrangements to the plan and to the participants? A plan administrator [ERISA section 3(16)] has the duty, as discussed above, to evaluate all the costs of such arrangements to determine reasonableness of fees and expenses and to convey those costs to the plan participants in accordance with the applicable regulations under ERISA sections 404(a)(5) and 404(c). 5. If the plan sponsor chooses to offer an SDBA or mutual fund window to its plan participants, such arrangement must be offered to all participants on a nondiscriminatory basis. The use of any such arrangement cannot be limited to the owners, officers, etc. 6. The plan sponsor should consider the administrative burden of offering such arrangements, to include the tracking of fees and expenses, the added disclosure requirements, and the managing of the various vendors. Consider the following hypothetical situation involving a plan with 100 employees, each of whom selects his or her own broker of record and establishes his or her own SDBA. How effectively can the plan administrator [ERISA 3(16)] evaluate for fiduciary prudence each of those 100 separate SDBAs and the 100 separate brokers who offer the SDBAs to the participants? Will the plan administrator [ERISA section 3(16)] be able to keep track of all the activity going on in each of those 100 separate SDBAs and report the costs back to the affected participants? 7. Will participants who choose their own investments be able to obtain better investment results than those obtained by an investment professional [an ERISA section 3(38) investment manager] who manages the accounts of participants who do not choose to direct their own investments? The bottom line for plan sponsors and plan fiduciaries is that they want to design and implement retirement plans that offer the best possible investment outcomes for their participants coupled with the least possible amount of fiduciary liability exposure. The issue for them is whether they think that the addition of an SDBA and/or mutual fund window to their participant-directed plan will accomplish that objective in a cost-effective and efficient manner. 6

7 The Employee Retirement Income Security Act of 1974 ( ERISA ) and the federal tax laws are complex and subject to change. The information contained herein is not intended to be, nor is it to be construed as, tax or legal advice. Neither Nationwide nor its representatives give legal or tax advice. Please consult your attorney or tax advisor for answers to specific questions. Nationwide and the Nationwide framemark are registered service marks of Nationwide Mutual Insurance Company. Nationwide Financial Services, Inc. All rights reserved. Nationwide Investment Services Corporation, Columbus, Ohio, member FINRA. NFM-13261AO 7

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