Dr. Susan Mangiero to Speak at ERISA Litigation Conference

Dr. Susan Mangiero, CFA, FRM joins an esteemed panel of speakers as part of "Conflicts in Plan Sponsor and Service Provider Relationships." She is joined by:

  • Attorney Michael J. Prame, Groom Law Group
  • Attorney Elizabeth J. Bondurant, Smith Moore Leatherwood LLP and
  • Attorney Bradley J. Schlichting.

According to the agenda, the panel will address the "unique issues that arise in connection with the provision of services to employee benefit plans, understanding the division of responsibilities and whether discretion has been delegated to the service provider, assessing the fiduciary status of third-part service providers" and much more.

Given current worldwide efforts to broaden the definition of who serves as a fiduciary and a classification of their duties, this panel's purview is timely and important.

Click to access the complete agenda for the American Conference Institute's ERISA Litigation event.

U.S. Department of Labor and Definition of Fiduciary

As the U.S. Department of Labor ("DOL") prepares to expand the definition of fiduciary, at the same time that the U.S. Securities and Exchange Commission is doing likewise, the financial industry is girding for some potentialy massive changes.

In response to the DOL's request for comments about an expanded definition of fiduciary as relates to retirement schemes, I warned that the law of unintended consequences could push knowledgeable professionals out of the marketplace. If fears that the liability costs will outweigh the benefits of working with plan sponsors, perhaps materially so, it will be difficult to attract the talent that is so badly needed to assist with implementing pension governance policies and procedures. 

I further wrote that a hefty dose of transparency could do wonders for differentiating "good" fiduciaries from others. This problem is not new. In fact, I wrote in 2006 that trying to identify who serves as a member of a plan's investment committee is like searching for hidden treasure. Click to read my 2006 post about pension fiduciary disclosure.

Click to read my January 20, 2011 letter to the U.S. Department of Labor about their proposed expansion of who should serve as a fiduciary.

Click to read the other letters submitted to the U.S. Department of Labor about this important issue of who properly counts as a fiduciary. Letters I read suggest the need for a universal education standard. As is the case in other countries, the United States could well end up with a mandate for independent fiduciaries to serve on investment committees, after having been properly vetted, licensed or otherwise credentialed.

Advisor Service Agreements: The Weak Link

Today's blog post is provided, courtesy of Mr. Phil Chiricotti, President of the Center for Due Diligence. Since the topic of contract review as an important element of proper due diligence is one which I have addressed elsewhere on www.pensionriskmatters.com and in my articles and speeches, I asked Phil for permission to reprint his article and he kindly agreed.         

                                          Advisor Service Agreements: The Weak Link

Enormous attention has been centered on retirement plan fees in recent years, including the new 408(b)(2)disclosure requirements. The liability has also increased for those who fail to comply. Lost in this shuffle is the fact that fees are only one piece of the puzzle.

While a well drafted, reviewed and understood service agreement can help preclude errors and claims, the service agreement is also the primary defense against liability caused by service provider mistakes and negligence. In spite of this important role, many plan sponsors - particularly small plan sponsors - sign standard service agreements without adequate review or counsel.

In addition to agreeing to vague service agreements, some sponsors engage advisors without a service agreement or verification of insurance coverage and bonding. As noted many times, most small plan sponsors also lack first party fiduciary liability insurance. A combination of the aforementioned is nothing less than a nuclear accident waiting to happen.

The DOL's new regulations provide an increase in both fee disclosure and clarity for comparative shopping, but 408(b)(2) does not preclude the need for an equitable service agreement. In our minds, the service agreement remains a weak link in the advisor vetting process, particularly in the small plan market. Indeed, the service agreement may not even reflect what was discussed and/or negotiated during the vetting process.

As noted by many attorneys, ERISA's primary focus has been on regulating the relationship between plan sponsors and participants. Beyond prohibited transactions and prior to the DOL's new disclosure regulations, little guidance was provided on how to manage the relationship between sponsors and service providers, including those assuming a fiduciary role.

The courts have not spoken uniformly about recourse between the plan and outside fiduciaries, but the plan sponsor's supervisory role, or the lack of it, has come under intense scrutiny in recent years. Because errors and disputes are a fact of life, it is long past time for the service agreement to become an integral part of the advisor vetting process from the beginning.

 

Venture Capital Funding for Fun Sites

Who says that money and humor can't mix? Sources inform that the owner of a collection of funny websites and blogs is now $30 million richer. Seattle-based Cheezburger Network, publisher of popular internet destinations such as Fail Blog, I Can Has Cheezburger and The Daily What, adds to its original $2.25 angel monies by partnering with venture capital funds such as the Foundry Group, Madrona Venture Group, Avalon Ventures and Softbank Capital. According to Xconomy.com, collective traffic is large with 16.5 million unique visitors each month, viewing a total of 375 million pages and adding or sharing 500,000 photos and videos.

According to its website, the Foundry Group that led this deal has some demonstrated winners in its portfolio, including the mammoth game maker Zynga and StockTwits.com, a popular social network for trading strategies. Softbank Capital invested in the Huffington Post and, until it was sold to NewsCorp, the religion powerhouse website known as Beliefnet, Inc. Madrona lists Amazon.com as a prior investment. Avalon has a stake in the aforementioned Zynga which boasts "10 percent of the world's internet population (approximately 215 million monthly users)" as having played one of their games.

Another fun-oriented firm that has raised venture capital money is JibJab.com. In early 2009, it was reported that this popular creator of satirical videos took in $7.5 million in a Series C round from Sony Pictures Entertainment, Overbrook Entertainment and Polaris Venture Partners.

As pension funds add to their venture capital allocations, imagine the due diligence conversations that focus on monetizing funny cat and dog photos or growing virtual crops.

Of course venture capital investing as limited partners means that pensions, endowments and foundations must have a comfort level with how the general partners manage risks and value their portfolio companies. For ERISA plans, an expanded definition of fiduciary, if approved, could materially change the relationship between institutions and fund managers for this alternative investment class. For government plans with a stated goal of revving up the local economy, achieving full diversification may be a challenge.

Editor's Note: Links to related items are shown below.

National Nothing Day

Are you ready to celebrate National Nothing Day on January 16 of each year? Created by late newspaperman Harold Pullman Coffin, 1973 marked the debut of this unusual event. The stated goal is for Americans to relax without worrying about missing an observance or celebration of something.

Perhaps not surprisingly, there is mounting evidence that relaxation and good health go hand in hand. According to the Mayo Clinic website, yoga (a type of relaxation activity) reduces stress, enhances fitness, helps with the management of chronic health problems and can keep weight gain in check. Writer Gloria Charlier cites an interview with Dr. Herbert Benson by veteran broadcaster Diane Rehm about his 2010 book entitled The Relaxation Revolution. The central premise is that a mind-body connection exists and must be nurtured. He's in good company since numerous prominent medical experts share his view. For businesses, the introduction of wellness programs can lower health care costs and encourage happier, and logically more productive, employees. Click to read "The relaxation response is healing" (Cincinnati Examiner, August 26, 2010).

If you get antsy sitting around this Sunday doing nothing, check out Meeting Wizard. A colleague tipped me off about this free site that finally (!) gets a handle on email and telephone tag when trying to set up multiple-person meetings.

Wages in Kind - I'll Have An Olive With That

In watching a British comedy film this weekend, actor Colin Firth used the expression "Dutch courage" in passing a flask to a fellow character. Ever curious, I looked up the term and discovered an interesting tidbit about early compensation schemes.

According to the website for the Gin and Vodka Association, "Dutch courage" describes a medicinal spirit that was produced in Holland as early as the 17th century. Gin as it was then known was "sold in chemist shops to treat stomach complaints, gout and gallstones." Apparently a nasty taste led to flavoring with juniper which itself was deemed restorative for health purposes. As it made its way to British troops during the Thirty Years' War, a colorful history unfolded that led to the promulgation of the Gin Act in 1736 which in turn encouraged riots in the street over expensive consumption taxes. (Was this a harbinger of modern-day protests against federal levies around the world?) In 1742, the Gin Act was repealed and the distribution of spirits came under the supervision of magistrates in Britain.

In the meantime, there were instances of gin being distributed as part of one's wages. That caught my attention since too much of anything has its own ill-effects. It's hard to imagine people drinking on the job and being able to adequately perform.

For interested readers, click to read "Gin History, Development & Origin."

 

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Help With Form 5500 Reporting

For those in need of help, click to access the "Troubleshooter's Guide to Filing the ERISA Annual Report" (U.S. Department of Labor, October 2010). This 70-page publication includes a handy reference chart that relates to the Form 5500 and Form 5500-SF (for small firms), along with related attachments. Another helpful resource is "FAQs About The 2009 Form 5500 Schedule C."

School's still out regarding the extent to which plan sponsors will be able to comply with new rules. So far, Schedule C seems to be a sticking point with numerous questions being asked about how to properly report "indirect" versus "direct" compensation to service providers.

As more pension plans allocate monies to mutual funds, hedge funds, private equity funds and funds of funds, they will need to report details about fees paid to these organizations as they too are now deemed service providers.

Bad Disclosures - Recipe For Disaster?

According to "State workers face privatization" by Jason Stein (Milwaukee Journal Sentinel, January 6, 2011), over 300 Wisconsin State Department of Commerce employees may soon be classified differently. The stated goal is to better deploy its $183 million budget to try to create jobs. (Whether you believe that governments are the engine of jobs creation is a post for another day.)

Questions remain about the benefits for identified employees and whether they will be covered by the state's retirement system. A related question is whether the general public will have a true assessment of Wisconsin's retirement plan IOUs if these privatized workers are counted as "public" for some purposes but not for others. In reading the many comments posted for the aforementioned article, emotions are running high about the real costs associated with this decision. Clearly, more information would go a long way to quelling any concerns.

The topic of financial disclosures may soon create real problems for public plans and, by extension, ERISA plans that are sponsored by companies that issue stocks and/or bonds. In today's New York Times, Mary Williams Walsh reports that the U.S. Securities and Exchange Commission ("SEC") may be investigating the large California pension plan known as CalPERS. It's premature and inappropriate to speculate but the inference is that bond buyers may have been in the dark about the "true" risks associated with this $200+ billion defined benefit plan. If true, California could pick up an even bigger than expected tab and municipal security investors could be in a position of having paid too much to own state debt. See "U.S. Inquiry Said to Focus on California Pension Fund."

As recently as 2009, then Special Advisor to California Governor Arnold Schwarzenegger, David Crane, referred to public pension plan reporting as "Alice-in-Wonderland" accounting. He added that "state and local governments are understating pension liabilities by $2.5 trillion, according to the Center for Retirement Research at Boston College." Since these are legal contracts that bind the state, city or municipal sponsor, they are on the hook for bad results, with large cash infusions likely.

It's not rocket science to conclude that other states and municipalities could face the same type of securities regulation inquiry. Indeed, even ERISA plans are vulnerable to allegations of fraud or sloppy reporting if their risk disclosures are incomplete, inaccurate, misleading or all of the above. See "Testimony for Securities and Exchange Commission Field Hearing re: Disclosure of Pension Liability" (September 21, 2010). Investors want to know whether they have a striped horse or a zebra in their stable. They need and deserve a solid understanding of investment risks to which they are exposing themselves. That can only occur if accurate and complete information is provided. To its credit, CalPERS seems to be emphasizing risk-adjusted performance as paramount. A December 13, 2010 press release describes the adoption of a "landmark" asset allocation that emphasizes "key drivers of risk and return."

Email Dr. Susan Mangiero, CFA and certified Financial Risk Manager if you would like information about what a risk disclosure assessment entails for your organization or on behalf of a client(s). You may likewise be interested in one of our workshops for directors, trustees and/or members of the investment committee about performance reporting within a fiduciary and financial risk management framework.

Money Makes the World Go Around

It's not just Broadway that extols the virtues of money. "Money makes the world go around...that clinking clanking sound can make the world go 'round" (from Cabaret).

Any discussion about investments inevitably centers on how much was made or lost or is expected to be made or lost. That's not necessarily bad with a few caveats.

  • Performance standards must be uniform and therefore comparable across investors for a given asset class or fund.
  • Numbers alone do not necessarily reflect a robust risk management process. To the contrary, artificial performance numbers can lull investment decision-makers into false security. Contact me if you want training on the pitfalls of investment performance reporting and risk management gaps. Click here to send an email.
  • Historical numbers tell a story about what happened. Good risk management dictates the need to assess "what if" scenarios. Things change and sometimes materially so. Don't depend on historical numbers to predict the future.
  • More than a few asset returns exhibit non-normal behavior. In such cases, traditional statistical tests are limited tools for capturing extreme value behavior.

The good news is that every day offers a renewed chance to do better with respect to benchmarking and risk management. Think of existing problems as gifts. Meet the challenges head on and your organization potentially reaps significant rewards such as share price gains, capital-raising on more favorable terms, fiduciary liability reduction, reducing time and stress, keeping promises to beneficiaries and much more.

Retirement and Death

Having been confronted with the sad passing of both my mother and my stepmother this fall, my sister and I are fast learning that death can be an organizational mess. It's amazing that so much is written about effective retirement planning yet there is scant "how to" information about preparing for your parent's inevitable event. At a time when those left behind are grieving the loss of older loved ones (parents, "not 21" partner, etc), searching for missing documents, if they exist at all, is tough.

In a quick survey about death preparedness, only one of my colleagues expressed confidence about leaving his spouse in great shape. Apparently, he and his wife have documented "need to know" information in one central location, should one or both of them meet their demise. They are debt-free so their vital paperwork emphasizes savings accounts and insurance policies. Others confessed that they have more work to do and were glad for the prodding.

While this blog is not typically focused on personal financial planning issues, I'm including some thoughts herein as I believe it is critical to take steps NOW to protect your family. At a certain point, it's too late!

Here are a few of my thoughts about advance planning, with a strong caveat to seek professional financial guidance. My comments are parent-centric but could certainly apply to other individuals as well.

  • Make sure that wills are signed, notarized and duly executed. Some states may not recognize a will as legitimate if it has not been properly processed. My mother had two wills, neither of which are recognized by Florida as "acceptable."
  • Buy term life insurance to cover your outstanding debts, at a minimum.  
  • Create a binder of relevant documents, including account names and numbers.
  • Obtain a long-term care policy and encourage your parents to do likewise. Some states provide tax incentives for this type of purchase. Even if no tax savings apply, it's nice to know that a loved one need not lose all assets as the price for getting needed care.
  • Inform relevant persons of your desires about granting a power of attorney (limited or full) to others so that everyone is fully informed, before the fact, and in agreement about who has control over funds. 
  • Talk to each of your parents when they are healthy, and not in mourning, about the life style they envision as a widowed single.
  • Ask if plans have been made for the care of pets.
  • Try to supportive if you are lucky enough to have time with an ill parent, putting your sadness aside "for now." My stepmother died rather suddenly so I was unable to say goodbye. With my mother, I am grateful for the few weeks I had with her before she went into hospice. If you have a sibling(s) with whom you can take turns being the "strong one" during the last days, you are fortunate indeed.
  • Take care of yourself and try to look on the bright side, to the extent possible. My sister and I were amazed to meet so many extraordinarily kind nurses and elder care professionals - true heroes in every sense of the word, doing their job with grace and reassurance.

When the time comes, and it will happen to us all, it will be tough enough to settle financial affairs in a timely fashion. Why make it harder when some advance planning can help ease the pain for everyone?

Editor's Notes: The items below may be of interest. Not everyone will have a large pool of assets to warrant formal estate planning. However, that should not discourage having candid discussions with your aging parents and other loved ones about money.

  • Click here to access "Estate Planning: How to Get Started."
  • Click here to read "Organizing your finances when your spouse has died."
  • Click here to visit "Planning For Death - Make Your Wishes Known."
  • Click here to read "Your toughest retirement puzzle: Long-term care."