Is Seventy the New Thirty?

Last year, the Today show celebrated Tao Porchon-Lynch for inspiring others with her verve for life. At ninety-six years of age, she is recognized by Guinness World Records as the oldest yoga teacher and still going strong. Yoga Journal quotes her as saying "I don't want to know what I can't do. I'm only interested in what I can do."

Mental Floss Magazine likewise inspired with its article entitled "10 People Who Switched Careers After 50 (and Thrived!)." Writer Ethan Trex waxed poetic about the accomplishments of seniors such as Colonel Sanders, Tim and Nina Zagat, Ronald Reagan and Laura Ingalls Wilder. Business Insider's Richard Feloni urged readers that it's never too late to follow one's dream, citing exemplars such as Vera Wang, Julia Child, Henry Ford, Grandma Moses and Taikichiro Mori in "20 People Who Became Highly Successful After Age 40."

Hollywood appears poised to convey a similar message about the advantages of wisdom and experience for those who are no longer twenty-one. In "The Intern," Robert De Niro plays a seventy year old widower who is not ready to retire. An ex-sales and marketing executive, his character joins a start-up company as an intern to the CEO and quickly grabs the hearts and minds of his younger co-workers. In "A Walk in the Woods," Robert Redford and Nick Nolte are septuagenarians whose characters are based on the bestselling book by Bill Bryson. They hike the Appalachian Trail, rekindle their friendship, evade grizzly bears and remember how nice it is to keep trying to challenge one's self. In "I'll See You In My Dreams," Blythe Danner discovers romance and purpose past sixty.

The implication seems to be that many individuals around the world prefer to keep working. According to the UK newspaper, the Daily Mail, "One in 20 people still have a job when they're over 70 - a figure that has doubled in the past decade..." USA Today's Rodney Brooks interviewed various individuals who extolled the virtues of never retiring, even though they could afford to stop working. In some cases, the goal was to try something altogether different.

George Burns "began a solo career when he was nearly 80." Although he missed his engagement to perform in London on his centennial birthday by a matter of months, he urged people to keep in mind that "You can't help getting older, but you don't have to get old."

With that truism in mind, one cannot forget that it takes money to:

  • Retire early;
  • Forego the salary and benefits of a steady job to tackle something new like start a company; and/or
  • Live large on a fixed income only.

For some individuals, the gap between one's retirement piggybank and monetary requirements is a reason to return to the workplace or never exit in the first place. For others, there is a true passion to stay in the game, whether that entails work, volunteering or something else. Most people strive for the ability to choose. That in turn requires a commitment early on, and thereafter, to identify, measure and effectively mitigate retirement portfolio risks.

Pension Plans, Valuation and Venture Capital

No sooner had I penned "Unicorns, Valuation and the Search for Investment Returns" for my compliance blog, I opened the New York Times this morning and discovered an article about so-called unicorns or companies with venture capital ("VC") backing and an estimated valuation of at least one billion dollars. According to the author of "The Hidden Risk of a Billion-Dollar Valuation in Silicon Valley," law school educator and pundit Steven Davidoff Solomon, venture capital firms want to get paid first in the event of a portfolio company sale which is why they negotiate hard to include a liquidation preference before committing capital. He cites a study by law firm Fenwick & West that confirms the prevalence of this downside protection and suggests that it is one reason why VC firms don't balk about what others may decry as valuations that are "too high." Interested readers can click here to download "The Terms Behind the Unicorn Valuations" by Barry Kramer, Michael Patrick and Nicole Harper (March 31, 2015). Professor Solomon points out that this kind of return insurance is a boon for venture capitalists but could be a disaster for founders who may end up with little or nothing if a liquidity event yields too few dollars. In an attempt to avoid this unhappy outcome, founders with sufficient voting power could nix a potential sale. Should that occur, investors then face greater risks due to less liquidity.

What is missing from the various analyses about unicorns and jumbo valuations of private companies overall is a discussion about the potentially adverse impact on institutional investors. In the event that valuation numbers are truly disconnected from economic reality, a limited partner may well end up paying too much in fees to its venture capital fund manager(s). Moreover, any institutional investor that allocates money to venture capital as part of its grand strategic asset allocation design may well fall short of its goals if valuations are "too high." Failure to realize a target return, satisfy a minimum funding ratio rule and/or diversify its portfolio are a few of the "nasties" that could ensue, thereby putting investment committee members at risk for allegedly breaching fiduciary duties.

One response, proffered by researcher Ashby Monk, is for institutions to invest directly and cut out the middlemen. This tact is likely to appeal to the bigger endowments, retirement plans and sovereign wealth funds that can afford to hire staff and put the requisite due diligence and technology infrastructure in place to vet and then monitor its investments. Even then, there is the peril of improperly relying on imprecise valuations that in turn drive so many other decisions.

As Dame Agatha Christie declared, "Where large sums of money are concerned, it is advisable to trust nobody." Investment fiduciaries need to understand how asset managers come up with the valuations they report to their limited partners and how their valuation numbers are revised over time to reflect changing conditions.

Fiduciary Frenemies

As senior ERISA litigation attorney Steve Rosenberg points out in a recent blog post, a service provider with a wayward institutional client could end up in a lose-lose situation. Ignore questionable or illegal conduct and co-fiduciary liability might lead to allegations of breach and a costly fallout for the advisor. Inform authorities and one is likely to lose that client and accompanying revenue.

Referencing a Plan Adviser article entitled "Do Retirement Plan Advisers Have a Duty to 'Rat?'," Attorney Rosenberg describes this dilemma as a real problem. I concur and offer that the growth in outsourcing arrangements could be a catalyst for further friction unless all parties understand how work is to be allocated and are equally committed to a high standard of care. With over $1.2 trillion categorized as "outsourced assets," there is a lot at stake.

In 2014, the ERISA Advisory Council had an entire forum on the topic of outsourcing of employee benefit plan services. On the topic of duties, law professor Colleen E. Medill testified that "... the courts have not provided much guidance on whether one fiduciary has the right to sue another fiduciary for equitable relief under ERISA.  She noted that this issue will be of increased importance as more employers and other named fiduciaries look to outsource fiduciary functions.  Likely, in a co-fiduciary situation, one fiduciary is more culpable than the other.  Thus, while both fiduciaries are jointly and severally liable under ERISA, the less culpable fiduciary may wish to sue the other fiduciary for damages in a contribution or similar action."

Based on my experience as an expert witness, service provider disputes can arise for a number of reasons, including, but not limited to, what I call an expectations gap wherein some task is left undone because it has not been formally assigned. In other situations, a conflict may exist that makes it hard for a third party to act independently on behalf of its institutional client. Of course, an investment committee member(s) may likewise have a conflict that impedes the advisor's ability to do what he or she is supposed to do. A pay-to-play kickback that involves a trustee with authority to hire an advisor is one example.

As I've written about many times, vetting and overseeing service providers by an investment committee is critical. As Attorney Rosenberg reminds his Boston ERISA Law blog readers, knowing one's customer is likewise important. After all, some lawsuits are brought by plan participants against both internal and outsourced fiduciaries. It is not unreasonable to conclude that working with a governance-focused client and vice versa redounds to the advantage of both buyer and seller.

Fiduciary Education Considerations

Rumor has it that regulatory exams of retirement plans continue to include explicit questions about whether a formal education program exists and, if it does, what it contains. Certainly the topic is not new. In 2002, the Working Group on Fiduciary Education and Training made recommendations to the U.S. Department of Labor to include the following:

  • Ensure that everyone understands that a fiduciary must "perform competently" which means, by extension, that he or she must be educated about duties and responsibilities;
  • Appoint someone to lead fiduciary education and outreach on a national basis;
  • Expand guidance as to what constitutes "best practices," adding to guidelines such as "A Look at 401(k) Fees for Employers";
  • Recognize that fiduciaries of smaller plans will likely have different training needs than those of larger plan fiduciaries; and
  • Provide helpful tools such as a dedicated hotline, a primer about fiduciary duties and conferences. 

A visit to the U.S. Department of Labor website entitled "Getting it Right - Know Your Fiduciary Responsibilities" yields a treasure trove of educational publications and hyper links to various online tools such as The ERISA Fiduciary Advisor. In addition, there are countless organizations that provide extensive fiduciary programs, some of which lead to certifications should one pass exams and meet experiential mandates. I myself have both taken and led various workshops about investment fiduciary subjects and continue to satisfy the requirements to be an Accredited Investment Fiduciary Analyst.

Yet with the plethora of available information about what it takes to carry out one's fiduciary duties, allegations of breach continue and on a grand scale. During a recent program entitled "ERISA Litigation and Enforcement: The Role of the Independent Fiduciary and Best Practices for Financial Advisors," my co-presenters and I talked about the importance of education and the consequences of not being up to speed on what has to be done on behalf of participants.

Some have suggested that formalizing a training requirement makes sense, adding that guidelines can demonstrate good faith and thereby serve as a defense in the event that a lawsuit is filed against investment fiduciaries down the road. Others counter that too much specificity may not allow for changes in circumstances or be inadequate to the multiple tasks of selecting advisors for more than one specialized asset class or strategy. 

Based on my experience, documentation about how internal fiduciaries are selected, let alone developed, is something of a rare bird. Likewise uncommon is a written policy that explains how investment committee members should be evaluated in terms of performance and by whom. In contrast, nearly all jobs have a specified description, an established pay scale and clear criteria about what makes for a "good" job versus performance that is deemed "unacceptable." Though one might be tempted to conclude that the absence of a formal procurement protocol for a retirement plan fiduciary means that the role is unimportant, nothing could be further from the truth. Serving as a fiduciary is a real job in every sense of the word and should be acknowledged accordingly.

Fiduciary Standard TV Ads

I have long professed my concern that retirement issues get short shrift when it comes to political speeches and public discourse. I am not talking about industry discussions which occur all the time. I am referring instead to Main Street outreach. Even today, there seems to be scant mention by U.S. presidential candidates about how to strengthen programs like Social Security and reform tax laws to encourage savings. Of course what the pundits call the "silly season" has just begun, with many months of campaigning to go. Imagine my surprise then when, in between news segments this week, several ads appeared on television about impending changes. In one ad, a man and a woman are chatting in a car about their concern that talking to their advisor will become more expensive and they will end up talking to a robot. Another ad showcases a small business owner who worries that new regulations will make it harder for him to keep offering a 401(k) plan to his employees. Viewers are urged to call their lawmakers.

Research suggests that the ads are sponsored by the Secure Family Coalition. Its website lists organizations that include the following:

  • American Council of Life Insurers;
  • Association for Advanced Life Underwriting;
  • Insured Retirement Institute;
  • National Association for Fixed Annuities;
  • National Association of Independent Life Brokerage Agencies; and
  • National Association of Insurance and Financial Advisors.

On the opposite end of the spectrum are groups such the Institute for the Fiduciary Standard. Its website cites advocacy, research and education of the public as ways for "all those willing to help" to get involved.

Regardless of one's stance about the U.S. Department of Labor proposal (and discussions by other regulators and lawmakers), the hope is that further conversations about retirement planning will encourage a long overdue focus on the abysmal state of readiness in this country and around the world.

If ads are hitting the airwaves now, is a Hollywood movie next?

Fiduciary Standard Thrust and Parry Continues

In the aftermath of the recent U.S. Department of Labor hearings about the fiduciary standard, the debate continues with fervor. In the last few days, I have seen television ads that are subtle but seem to impugn attempts at getting a final rule in place. Elsewhere, estimates suggest that regulations could be costly. According to "SIFMA: DOL Fiduciary Rule To Cost Firms Over $5 Billion" (Wealth Management, July 20, 2015), the Securities Industry and Financial Markets Association posits that broker-dealers will incur a large start-up outlay of about $5 billion and then ongoing costs thereafter in excess of $1 billion. Others counter that the benefits are considerable and worth the incremental expense.

Ongoing lively debates may not make a difference if Plan Sponsor's John Manganaro is correct. In "DOL Stands Firm on Fiduciary Rule Despite Negative Comments" (August 12, 2015), the point is made that Secretary Perez feels strongly that the U.S. Department of Labor (a) has been diligent in vetting critics' comments and (b) making modifications to hopefully ensure flexibility.

School is still out as to the "what, when and how." I predict that the aftermath may offer unexpected surprises. As with so many mandates, there are plenty of people who immediately look for the loopholes and act accordingly.

U.S. Department of Labor Hearings About Conflict of Interest and Fiduciary Role

Though it may seem arcane to those outside of the financial services industry, the current debate about who serves as a fiduciary, compensation and duties is a big deal. Depending on what you read and with whom you speak, millions of retirees could be materially impacted. In the spirit that what happens next is newsworthy, you may want to tuck the hearing URL away and check back often. As the four days of public hearings proceed, the U.S. Department of Labor is expected to publish a transcript of what witnesses say. Besides a chance to know what professionals from a wide variety of backgrounds aver (both pro and con), interested parties can download nearly 2,600 comment letters. Click here to access the Public Hearing Agenda for the period from August 10, 2015 through August 13, 2015. Click here to download and read the following: (a) requests to present during public hearings (b) comment letters and (c) petitions.

Pension Plan Divestment and ESG Investing

In its quest to advise the City Mayor, Boris Johnson, about climate change, the London Assembly recently urged the London Pension Fund Authority ("LPFA") to rid itself of its carbon ("specifically fossil fuels") investments and allocate the proceeds to "responsible funds, which deliver appropriate returns to the taxpayer." They referenced the National Association of Pension Funds ("NAPF") and its recognition that institutions have a role to play in Responsible Investment ("RI") or what the NAPF describes as the "integration of environmental, social and governance (ESG) factors in the investment decision-making process and stewardship activities."

According to Chief Investment Officer, the LPFA, with assets in excess of 4 billion pounds sterling, replied, in a letter to its 80,000+ members, that it takes ESG investing seriously as a long-term vehicle, adding that its "key aim must be to ensure we can continue to pay your pensions as they fall due." Although this jumbo pension plan currently has "less than 1% invested in fossil fuels," it carved out space on the LPFA website to address the topic as follows: "Responsible investment factors, such as low carbon, may be relevant as an additional consideration. However, screening out stocks for investment/divestment on ethical grounds only is in conflict with the Board's fiduciary duty if the decision risks significant financial detriment to the fund."

The concepts of responsible investing and divesting are not new. Pension plans and sovereign wealth funds are a few of the many organizations that have been approached to jettison certain investments. Push back, when it occurs, is based on the notions that (a) entrenched shareholders can do a lot to effect change (b) divestment costs are high and/or (c) selling off a position could violate fiduciary obligations to beneficiaries. In "Selling out of fossil fuels no solution for climate change" (Financial Times, March 22, 2015), Anne Stausboll details the governance stance adopted by the California Public Employees' Retirement System to encompass "advocacy, engagement with companies and investing in climate-change solutions." As its CEO, she suggests that "Walking away by simply selling off assets through divestment will not help."

In 2007, I wrote about my interview with Maria Bartiromo, then CNBC senior anchor, on this topic of whether, how and when to divest. See "Is There Fiduciary Liability Attached to Divestment?" I offered four considerations as repeated below:

  • Selling an investment due to political pressures could end up costing "taxpayers and plan participants in the form of 'unexpected' transaction costs" which in turn could worsen sub-par funding levels;
  • Proceeds from any mandated sales could lead to lower returns than originally projected;
  • Fiduciaries may find themselves accused of breaching their duties unless they can adequately demonstrate the economic rationale for divesting; and
  • Plans, especially those with small staffs, could be overwhelmed with having to spend considerable time and money to get up to speed before making direct ESG type investments.

As with any investment action, there is never a free lunch. Every decision needs to be carefully reviewed.

Interested readers may want to check out the following items:

Beauty Makeovers and the Retirement Industry

As I milled around the counters last Sunday during a private shopping event, I was reminded how much fun it is to try out new products. Certainly the roughly $400+ billion beauty industry has realized to great effect that the concept of a makeover and the lure of a new look can generate profits. If the consumer likes a product, there is a strong likelihood that he or she will buy it again when the first bottle is finished. Indeed, some cosmetic and skincare retailers offer sign-ups to ensure regular deliveries of favorite creams and gels. Make no mistake however. The purchasing experience itself is an important part of the process. Those organizations that recognize the allure of feel, smell and touch are raking in the dough. According to "The Sephora effect: How the cosmetics retailer transformed the beauty industry" by Sarah Halzack (The Washington Post, March 9, 2015), brand loyalty has given way to plunking down dollars "in a place where you can easily test virtually any product." Buyers have constant access to information, in large part due to social media marketing. "They don't have to go to a counter to get that education."

Although lipstick and Individual Retirement Accounts ("IRAs") may seem like polar ends of the consumption spectrum, there are enough similarities that financial services marketing executives may want to spend some time perusing the powder and perfume aisles. To curry favor with investors who find it hard to differentiate among savings vehicles, savvy sellers are starting to recognize the importance of making the buying process "fun" and "lively." Offering a financial "beauty makeover" with encouragement about a better future is one way to establish a meaningful dialogue between an advisor and an investor. Being transparent and showcasing multiple products is another strategy.

Things are changing from Wall Street to Main Street but there is room for improvement. In "Creative Content Marketing for Financial Services: 3 Examples" (Chief Content Officer Magazine, March 7, 2013), Kevin Cain points out that "...the industry seemingly operates under the misconception that its heavy regulatory burdens both preclude and exempt it from taking a creative approach to content" and should embrace "the style and delivery of the message." He then illustrates the tact taken by three financial service firms to attract and retain business.

Sentient marketing and a dash of pizzazz may soon become a necessity if the financial services industry wants to sell to the younger generation. As the Society of Actuaries website informs, those in their twenties and thirties are expected to "make up 50 percent of the U.S. workforce by 2020" and therefore represent "a sizable market for financial products." To reach these millennials, TIAA-CREF executives, Richard Pretty and Jonathan Gentry, urge firms to: (a) explain both short-term and long-term planning issues such as paying off student debt while seeking to put money aside (b) recognize the imperative of digital communications and engage Generation Y accordingly (c) leverage the influence of parents and peers and (d) describe the vagaries of the capital markets and "restore confidence in investing." They may need to act fast if they want to compete with robo advisors. As Marlene Y. Satter writes in "Wealthy millennials want automated retirement" (Benefits Pro, April 28, 2015), a new study from Global Wealth Monitor will eschew the "personal touch in retirement planning" in exchange for online tools and analysis.

Those planning for retirement may not get a free lipstick but snappy interactions with prospects and existing clients are likely just the beginning of the brave new world of financial services marketing. Competition with robots and clarion calls for lower fees challenge service providers even further.

Investment Fiduciary Monitoring, Economic Damages and Tibble

Following the publication of "An Economist's Perspective of Fiduciary Monitoring of Investments" by yours truly, Dr. Susan Mangiero (Pensions & Benefits Daily, May 26, 2015), I decided to write a second article on the topic as there is so much to say. This next article is co-authored with Dr. Lee Heavner (managing principal with the Analysis Group) and continues the discussion about investment monitoring from an economic viewpoint. Entitled "Economic Analysis in Fiduciary Monitoring Disputes Following the Supreme Court's 'Tibble' Ruling" (Pensions & Benefits Daily, June 24, 2015), we address the case-specific nature of investment monitoring by fiduciaries and the complexities of quantifying possible harm "but for" alleged imprudent monitoring.

Noting the discussion of changed circumstances by the High Court as part of its Tibble v. Edison International decision, it is imperative to understand that investment monitoring involves multiple steps, each of which takes a certain number of days to complete. "In the world of dispute resolutions, every complaint, expert report, and decision by a trier of fact is specific to a date or period of time. Time is no less a crucial variable with regard to the creation and implementation of an adequate investment monitoring program." While "changed circumstances" are likely to vary across plans and plan sponsors, exogenous events can spur further monitoring. "The departure of a key executive, a large loss, or a government investigation for malfeasance are a few of the events that may lead plan fiduciaries to subject an investment to enhanced scrutiny."

The expense of monitoring is another issue altogether, one that is nuanced, important and necessary to quantify. We point out that (a) there are different types of costs (b) expenses occur at different points in time and (c) some costs may be difficult to assess right away. "For example, when monitoring leads to a change in vendor or investment that in turn results in participant confusion, blackout dates, account errors, or a lengthy delay in setting up a new reporting system, the true costs may not be known until well after the transition is completed."

There are no freebies. There is a cost to taking action as the result of monitoring. There can be a cost to inaction as well. Investment selection and investment monitoring are different activities. Categories of investment monitoring costs include: (a) use of third parties (b) search costs (c) change costs and (d) opportunity costs. Any or all of these categories may come to bear in a calculation of "but for" economic damages. As a result, "there may be substantial variation to when prudent fiduciaries would act let alone how long it would take an investment committee to complete each action." An assessment of economic damages - whether for discovery, mediation, settlement or trial purposes - requires care, consideration and an understanding of the complex investment monitoring process.

For further insights and to read about this timely topic, download our article by clicking here.