The Importance of Clear Communications

A funny thing happened the other day while having a snack in a Paris bakery. I am here for a few days, tagging along with my husband who is teaching for a month. Shortly after we sat down, a Japanese family arrived, went to the counter and asked in English for a sandwich to be heated before serving. As the woman at the cash register only spoke French, she did not respond right away. I think she was trying to understand what they wanted. The new arrivals asked again, in English and speaking a bit louder. Again, no reply. Then another customer, already seated and chatting with her friend, began speaking in Japanese to the family and subsequently translating into French for the bakery worker. As a result, the lady behind the counter was able to respond that they had no way to heat a sandwich and thereby allow the family to choose what they wanted to do as a result. Minutes later, four hungry customers were enjoying cold bread and hot beverages, with gratitude for the translator all the way around.

My take away points from observing this encounter is that the world is getting smaller. Speaking a second language is a plus. When you cannot speak the "right" language, access to someone who can translate is an advantage. When individuals are not communicating, opportunity loss occurs. Had the friendly passerby who spoke Japanese and French not played an active role, a family would have gone hungry for awhile and the bakery owner would have lost a sale.

Applied to the investment industry, similar lessons exist.

Investors often complain that contracts with managers, brokers, advisors, insurance companies and other service providers are too complex to understand. The ambiguity or absence of clarity as to who should be doing what and in what manner typically shows up as part of a dispute resolution. Something has gone awry and one party is bringing action against the other, based on facts and circumstances that include each party's interpretation of words.

Complexity of a product or service is another consideration. In "Don't Make Investing Too Complicated" by Matthew Luke (The Motley Fool website, May 10, 2013), readers are urged to focus on companies with simpler business models. Luke writes that "The more complicated an investment however, the more things can go wrong." While his statement may not apply to all investors, there is merit for everyone in being able to identify risk factors that can potentially destroy value.

As an independent risk governance and prudence expert, I am often in the position of having to ask service providers and investors alike to tell me what risk factors they deem most significant as potential destroyers of long-term value. We then talk about the likelihood of something going wrong and how risks are being mitigated. Those conversations cannot take place if information is overly complicated and/or unclear.

In other situations, a "translator" such as an informed consultant or advisor can assist both managers and investors in closing a sale and keeping a relationship alive. Like the bakery clerk and the hungry family, someone may need to intervene so that various parties are understood.

As new regulations are put into place, what investors will read likely reflects the need for the seller to comply. Compliance text is not necessarily the type of plain language that would better aid buyers in making an informed decision. This is not good. Investors need to understand what is at stake. Investment management service providers can benefit, sometimes materially so, by conveying concepts in plain language.

Economic Indicators to Include Focus on Pensions

In what most people would call a significant announcement, the U.S. Bureau of Economic Analysis ("BEA") will begin measuring economic growth this summer by taking pension finance into account. According to its March 2013 announcement, BEA will record defined benefit plan transactions on an accrual accounting basis. This entity, part of the U.S. Department of Commerce, will now include a pension plan subsector in the national income and product accounts ("NIPAs"). As much as possible, the BEA will "provide estimates of the current receipts, current expenditures, and cash flow for the subsector." The intended changes contrast with the current method of including information about disbursements and earnings of pension plans as participants' personal items and using a cash basis for reporting.

The goal of enhancing transparency about employer-provided defined benefit retirement plans is laudable. However, in reading the fine print, one wonders if the opposite will occur and users of post-implementation data will be more confused. For one thing, the BEA states that it will adopt an accumulated benefit obligation ("ABO") for "both privately sponsored and state and local government sponsored plans" and use a projected benefit obligation ("PBO") for federal government plans. This means that you will never be able to compare all defined benefit plans with a single set of rules. Second, the BEA describes a discount rate assumption that "will be based on the AAA corporate bond rate published by the Federal Reserve Board." Since debt issued by the U.S. is no longer rated AAA and recent regulations allow for temporary funding relief for corporate pension plans, how will BEA numbers compare and contrast with financial accounting numbers over time? Third, since certain data is not available prior to 2000, the BEA will extrapolate to generate "normal costs" for past years. Will their method of extrapolation allow for an accurate "apples to apples" assessment of historical pension earnings and costs? In the plus column, applying the same discount rate for private pension plans versus state and local offerings will help to better assess the economic viability for each sector.

Should the Public Employee Pension Transparency Act move forward, disclosures will be based on the BEA approach. Understanding what BEA numbers do or do not show will therefore be a critical exercise for policy-makers, investors and participants.

For a detailed discussion of these intended changes on the part of the BEA, read "Preview of the 2013 Comprehensive Revision of the National Income and Product Accounts: Changes in Definitions and Presentations," BEA, March 2013. Click to read about advantages of passing the Public Employee Pension Transparency Act. Click here to read criticisms of this proposed rule. On April 23, 2013, the U.S. Senate received a version of the Public Employee Pension Transparency Act in the form of S. 779. This proffered legislation cites a staggering $5.170 trillion in pension liabilities of the 50 states combined. It is no wonder that numerous individuals want a true tally of what is owed.

Pensions and Politics

I have a favorite shirt that gets a few laughs when I wear it. The message is "Change is good. You go first." That is how I feel when I hear pundits talk about the future of pensions and the need for reform. What I continue to believe and have said many times in the last ten years is that the retirement issue is getting closer to the point of no return. Politicians will jump in to allegedly save the day. Part of the problem is that there is a battle of interests with few constituencies aligned to move in the same direction. When this occurs, a central authority typically intervenes.

On May 2, 2013, one speaker who presented as part of the "Bloomberg Forum on Pension Reform" called the situation "desperate." Another speaker said that he is optimistic that the U.S. Congress is proceeding apace with relevant reform. Another speaker hinted at inevitable higher premiums to be paid by plan sponsors to the Pension Benefit Guaranty Corporation ("PBGC"). Comments were made that some underfunded plans will have to materially cut retirement benefits in order to survive.

People are starting to ring the alarm bells. In its 2013 Retirement Confidence Survey, the Employee Benefit Research Institute ("EBRI") found that only 13 percent of workers feel "very confident" about the ability to enjoy a comfortable retirement. That means that 87 percent of workers do not feel confident. Click to see the results of the 2013 Retirement Confidence Survey.

It is unclear how much power voters will have to effect movement as relates to retirement reform such as tax incentives to save, especially when the issue is seldom discussed as part of political campaigns. That could change over time.

When I recently took my 22-year old nephew out to lunch, we talked at length about his views on the budget. He has no debt and has found a job but he knows that many of his peers are not so fortunate. They are graduating with large school loans, have not found a job and are sleeping on mom's couch. These "boomerang" kids are growing in numbers around the world. While they may not be an economic force right now, they vote. At the polar opposite end in terms of desire for how the system should change, if at all, retirees vote as well.

How will politicians respond to younger persons who do not want to shoulder the high costs of social safety net programs and seniors who want them?

Politics and pensions may not make for strange bedfellows after all. As a champion of free markets, I am not particularly happy about the prospect of a "one size fits all" law(s) that seeks to create a national retirement system and/or levies tax penalties for those who wish to save more than $3.4 million or whatever level is deemed "too much." Think higher compliance costs, perverse incentives, the law of unintended consequences, moral hazard and the loss of flexibility. Unfortunately, with disparate owners who each want different things, something will have to take place soon. Many of the retirement piggybanks around the world are close to empty.

Real Estate Investment Trusts (REITs) and ERISA Plans

According to "REITs By The Numbers," published by the National Association of Real Estate Investment Trusts, Inc. ("NAREIT"), real estate is gaining favor with 401(k) investment committees that decide on asset allocation. They write that the last ten years has seen a rise from 5 percent to 30 percent of 401(k) plans that offer Real Estate Investment Trusts ("REITs") as an investment option. Moreover, the market is large at $1 trillion of real estate held in the form of an investment pool.

If you are a member of a 401(k) investment committee, advisor, consultant or individual participant, you will want to keep up with current guidelines and rules. Some of these are described in "Real Estate Investment Trust Valuation Guidelines Published." This blog post by Susan Mangiero includes FINRA and SEC comments about non-listed REITs as relates to items such as illiquidity, valuation and disclosures.

Valuation and ERISA Fiduciary Liability: Traps for the Unwary Appraiser

An esteemed panel of experts will speak on May 14, 2013 from 1:00 PM EST to 2:40 PM EST as part of a webinar that is sponsored by Business Valuation Resources. Entitled "Valuation and ERISA Fiduciary Liability: Traps for the Unwary Appraiser," Dr. Susan Mangiero, CFA, FRM and Accredited Investment Fiduciary Analyst, will be joined by Mr. Robert Schlegel, ASA, MCBA and ERISA attorney James V. Cole II. Dr. Mangiero is a Managing Director with Fiduciary Leadership, LLC. Mr. Schlegel is a principal with Houlihan Valuation Advisors. Attorney Cole is a principal with Groom Law Group.

Why You Should Attend

As retirement, healthcare, and other employee benefits continue to grow, they are placing new stresses on firms of all sizes, whose commitments to these funds are beginning to outpace their revenues. Regulations and lawsuits are now challenging the defined responsibilities and liabilities of the financial professionals who create, manage, and even analyze these entities. This means that every appraiser now needs to assess risk, and the extent to which employee benefit plans impact enterprise value.

In this webinar, Dr. Susan Mangiero, Mr. Rob Schlegel, and ERISA attorney James Cole discuss existing, emerging, and proposed disclosure rules, an understanding of which are imperative to navigate the maze of actuarial, accounting, and regulatory numbers. Learn why estimating future expected cash requirements to service a plan(s) is imperative if an appraiser wants to opine whether a firm can realize its growth targets, and how benefit plan economics, such as withdrawal liabilities, change when derivatives or annuity transactions are in place. Appraisers need to understand emerging discussions now taking place at FASB and other regulatory agencies that will affect market participant activity relating to exchange value. Markets are waking up to this emerging area, and appraisers can no longer afford to remain asleep of these issues.

According to Mr. Blake Lyman, Professional Program Manager with Business Valuation Resources, LLC, "BVR is thrilled to be offering this program with Susan, Rob, and Jim. As the go-to resource for all professionals involved with business valuation, we always seek to present the most in-depth content on the most pressing issues for the many experts who rely on us. With Susan, Rob, and Jim's experience and expertise, this program is sure to surpass the high standards we set for ourselves and that our customers have come to expect."

To register, visit the Business Valuation Resources website.

Qualified Professional Asset Manager (QPAM) Webinar Slides

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The U.S. Department of Labor estimates that there are roughly 4,400 financial organizations relying upon the DOL’s Qualified Professional Asset Manager (“QPAM”) class exemption when managing the assets of their own employee benefit plans. Maintaining QPAM status is important for these asset managers as this class exemption facilitates their ability to make investment decisions with respect to their plans without the need to monitor compliance with the prohibited transaction rules of Section 406(a) of ERISA.  Following an amendment to the QPAM class exemption by the DOL that went into effect in 2012, to secure their QPAM status when they manage the assets of plans they sponsor, financial firms must satisfy an additional hurdle to be able to meet the QPAM exemption requirements - an annual compliance audit conducted by an independent party.

With an impending June 30, 2013 deadline to complete their QPAM audits, financial firms managing assets of their sponsored ERISA plans are confronting the intricacies of this audit process. The goal of this informative and timely webinar is to help asset managers understand what is required to maintain QPAM status with respect to transactions they direct for their own plans.  Join an inter-disciplinary panel of legal, auditing and economic experts to learn about these QPAM audit requirements and how to conduct a QPAM audit.  Topics that will be covered include:

  • The QPAM exemption, why and when an audit is required;
  • QPAM audit requirements;
  • How trading activity is tested;
  • What policies and procedures must be reviewed;
  • Logistics of data gathering and examination of this data;
  • Type of report that an organization is likely to receive; and
  • Correcting any deficiencies uncovered by the audit team.

On May 1, 2013, Dr. Susan Mangiero co-presented as part of a webinar entitled "QPAM Compliance Audits: How Asset Managers Can Minimize Regulatory Risks and the Cost of Breach." Sponsored by Seyfarth Shaw, LLP, the program described the consequences of non-compliance as well as the governance and risk management benefits associated with a QPAM audit.

Click to download the QPAM webinar slides from May 1, 2013.

Hard to Value Assets and Pension Funding

Add wine and cheese to the picnic basket and the pension fund too. According to "Companies Substitute Tangibles, Like Cheese, for Investments" by Mary Williams Walsh (New York Times, April 19, 2013), gaps in funding status are tempting some sponsors to add "unusual assets" to their portfolio. Her list of in-kind contributions includes cheese, whiskey, water rights, precious stones, oil wells, a restaurant, a brewery and a slaughterhouse.

An obvious advantage to a plan sponsor is the preservation of cash when an intangible or tangible asset is instead contributed. Another benefit is the potential upside associated with an asset poised for capital growth. This is especially true if cash contributions would be parked in a low-interest rate security or fund.

The downside is that an expectation of higher returns almost always means a greater uncertainty of realization.

Requisite approval by the U.S. Department of Labor may or may not mandate the hiring of an independent fiduciary to in turn engage someone to assess the value of an intended in-kind contribution. As a trained appraiser, I would tell anyone who asks that there are multiple items that must be assessed as a precursor to determining fair market value of the asset in question. Some of the items are listed below. This is not an exhaustive tally by any means.

  1. Control - If there are multiple owners of an asset, it is important to assess the extent to which the ERISA plan can exercise authority over how an asset is used, disposed of and/or managed for purposes of adding to the asset's value.
  2. Priority of Economic Claims: Understand whether the pension fund will be first in line to receive cash from the service and/or subsequent sale of the item being considered for contribution.
  3. Collateral: If the value of the intended in-kind contribution item is supposedly dependent on other assets, it is critical to know whether that collateral is fungible and if there are sufficient assets in place.
  4. Customer Diversification: If all or part of an operating business will be contributed to an ERISA plan, someone must make sure that revenue is generated from a sufficiently large number of clients so that if one or more large customers disappear, the value of the asset being contributed will not be adversely diminished.
  5. Marketability: Not all assets trade in an active secondary venue. Discounts for lack of marketability need to be carefully examined so that the ERISA plan does not overpay.
  6. Legal Protection: The appraiser must know whether an item such as a trademark or patent or other type of intangible or tangible asset is protected under law in terms of ownership and/or restricted use.
  7. Quality of Management: If the pension fiduciaries are tasked with running a business or maximizing the value of an intellectual property asset to be contributed to a plan but do not have the time or requisite knowledge, someone may cry foul if the item loses value.
  8. Maintenance: The value of an asset such as real estate, a building or piece of heavy equipment will go down if not cared for in a timely fashion. The cost of upkeep and/or the speed of obsolescence are two of many considerations that cannot be ignored. If an asset requires significant cash to keep it in tip top shape, it could be a drain on scarce pension plan resources.

Besides the valuation-related issues, an objective third party needs to assess the prudence of including a particular asset in the plan's portfolio. Then there is the issue of how the intended in-kind contribution will impact regulatory reporting, financial statement representation and actuarial requirements, not to mention future cash inflows and outflows.

The decision to contribute an in-kind asset is far from trivial. Like any other decision for an ERISA plan, care and diligence must be demonstrated before taking action.

Dr. Susan Mangiero Speaks About ERISA Plan Valuation and Appraiser Liability

 

I am delighted to co-present on May 14, 2013 from 1:00 pm to 2:40 pm EST for Business Valuation Resources about the urgent need to properly assess pension fund economics as part of any opinion of value.This is a particularly timely topic as the U.S. Department of Labor seeks to designate appraisers as a fiduciary for an assessment they render about an ERISA plan such as an Employee Stock Ownership Plan ("ESOP"), 401(k) plan and/or defined benefit plan.

The session is entitled "Valuation and ERISA Fiduciary Liability: How to Protect Yourself." Speakers include:

  • Dr. Susan Mangiero, CFA, certified Financial Risk Manager, Accredited Investment Fiduciary Analyst, trained appraiser and past president of the Connecticut chapter of the National Association of Certified Valuation Analysts (Fiduciary Leadership, LLC;
  • Mr. Robert Schlegel, ASA, MCBA and past president of the Indiana chapter of the American Society of Appraisers (Houlihan Valuation Advisors); and
  • Senior ERISA attorney James V. Cole II, with the Groom Law Group.

Click here to register for this ERISA valuation program.

Dr. Susan Mangiero Speaks at Fiduciary Conference About Due Diligence for Alternative Investments

I am delighted to have been invited to join the faculty of the Master’s Track at the annual fi360 investment fiduciary conference, held this year in Scottsdale, Arizona. Speakers include: (1) ERISA attorney Charles Humphrey (2) Edward Lynch, AIFA, RF, GFS with Fiduciary Plan Governance, LLC (3) Dr. Susan Mangiero, AIFA, CFA, FRM with Fiduciary Leadership, LLC and (4) pension auditor Michelle Sullivan, CPA with Freed Maxick CPAs

The fi360 Master’s Track offerings are created especially for those with a knowledge of fiduciary standards and how that standard applies to the topics being presented.

Our session is entitled "Due Diligence for Alternative Investments." Our panel will focus both on the legal issues and the internal control compliance issues that cannot be ignored by anyone with a fiduciary responsibility to prudently select and monitor. This session will describe the impact of Dodd-Frank on investing in alternatives, various court cases and regulatory enforcement actions as well as the DOL/IRS regulatory guidance on alternative investment allocations. Click to read more about this session and the other sessions to be presented at this conference of investment fiduciary professionals from April 17 to April 19.

Pension Risk Governance Blog Celebrates Seventh Birthday

I am delighted to announce our seventh year as an educational resource for the $30+ trillion global retirement plan industry. With over a million visitors to www.pensionriskmatters.com, I appreciate the ongoing feedback and encouragement from financial and legal readers. This blog began as a labor of love and continues to be personally rewarding as a way to help guide the discussions about pension risk, governance and fiduciary duties.

Here is a link to the March 25, 2013 Business Wire press release about www.pensionriskmatters.com, an educational pension risk governance blog for ERISA, public and non-U.S. pension plan trustees and their advisors.

As always, your input is important. Click to send an email with your comments and suggestions.

Thank you!