Uncle Sam Wants You ... To Get a Fiduciary Advisor Audit

San Diego is hopping with over three hundred financial professionals attending the FI360 Annual Conference. Topics on the agenda include fiduciary requirements in the aftermath of the Pension Protection Act of 2006 (PPA), trends in fiduciary liability insurance claims, prudent investment fiduciary practices and 401(k) plan economics.

One item in particular - the PPA-required audit of  "eligible investment advice arrangements" (EIAA) - is taking center stage. By definition, an EIAA is "an arrangement that, among other things, provides that any fees (including any commission or other compensation) received by the fiduciary adviser for investment advice or with respect to the sale, holding, or acquisition of any security or other property for purposes of investment of plan assets do not vary depending on the basis of any investment option selected." Click here to read Field Assistance Bulletin No. 2007-01 (U.S. Department of Labor - February 2, 2007).

In response, the Centre for Fiduciary Excellence just announced an audit and certification program to ‘fiduciary advisers’ as defined by the PPA, "who intend to serve in EIAA’s. The fiduciary adviser certification program is supplemental to the existing CEFEX Investment Advisor Certification based on the fiduciary practices published by Fiduciary360 of Sewickley, PA. These practices are defined in the Fiduciary 360 publication "Prudent Practices for Investment Advisors" which was reviewed by Reish, Luftman Reicher & Cohen of Los Angeles, CA, and edited by the American Institute of Certified Public Accountants (AICPA)."

Read more by opening the press release file.

PG Editor's Note: The Centre for Fiduciary Excellence and the Foundation for Fiduciary Studies (and its affiliate, FI360) are partners with Pension Governance, LLC (owner of this blog). We all agree on a similar mission - to empower plan sponsors and their vendors and agents by providing educational information about fiduciary investment issues and promoting transparency about investment fiduciary practices. Click here to learn more about all of our partners.

Bond Demand Influenced by Pensions

There is a lot of evidence, anecdotal and otherwise, that various capital markets are affected by policy. The impact on price and trading volume depends on a host of factors, not the least of which is the nature of the new rules and regulations. So it is with government bonds, domestic and foreign.

In the aftermath of the Pension Protection Act of 2006, many plan sponsors, under pressure to address funding gaps, are adopting an active stance towards interest rate risk management. While strategies can and do vary, trading in bond markets in the U.S. and elsewhere have been affected by a surge in demand for longer-term bonds. According to Reuters journalist Richard Leong, "Appetite for 30-year bonds and other long-dated assets has been fierce as pension fund managers have been stocking up on them to ensure they have enough income-generating assets to meet future obligations, traders and investors said." Additionally, stripped bonds "offer longer duration and more predictable income than a cash bond." (See "Pension demand leads to long bond stripping," December 7, 2006.)

By definition, a stripped bond represents a decoupling of the interest portion from the repayment of principal. The latter is sold as a zero coupon bond. According to Investor Words, "Strip is an acronym for Separate Trading of Registered Interest and Principal of Securities."

Much more will be written about interest rate risk management in later posts. For now, you can find definitions, checklists and step-by-step examples in a book I wrote in 2005 for John Wiley & Sons. Entitled Risk Management for Pensions, Endowments, and Foundations, there is an entire chapter about fundamental concepts. Other chapters address futures, options and swaps, respectively.

Competing methods and products to manage interest rate risk abound. However, the tradeoffs are far from identical. This means that plan sponsors are quickly having to learn about financial risk control, whether they like it or not.

Pension Fiduciary Liability - Busy Times Ahead

The life of a pension fiduciary is no bowl of cherries. As I wrote on May 16 of this year, I parenthetically asked why anyone would want to be a fiduciary. Their job is critical to the process but less than easy.

"Often the pay is bad and the hours are long. (Individuals seldom receive any additional compensation at the same time that they are asked to assume significant responsibilities that put them directly in the 'line of fiduciary fire.') One might say it's like being asked to constantly eat your peas without any hope of ever getting dessert." (Click here if you want to read the entire post entitled "Who Wants to be a Fiduciary Anyhow?")

In "Liability of plan fiduciaries a still-growing concern", journalist Marion Davis (Providence Business News, November 11, 2006) writes that, post-Enron, employers are more aware of their fiduciary duties to "manage the plan honestly" and to "manage it reasonably well and provide accurate and complete information to participants."

She cites attorney Richard D. Hoffman with Nixon Peabody as saying that "he has seen a growing number of employers buy insurance to protect themselves from ERISA claims" at the same time that the "number of claims has increased as well" and "plantiffs have become more sophisticated."

Issues such as fees are just the tip of the iceberg. The Pension Protection Act of 2006 adddresses valuation and a cornucopia of investment-related issues such as qualified alternatives for 401(K) plan participants. The article quotes attorney David C. Morganelli with Partridge, Snow & Hahn as recognizing a heightened awareness of what is at stake, adding that "lawyers such as himself have been answering an increasing number of questions about obligations and liabilities under that law and under ERISA."

In January 2007, our sister company, Pension Governance, LLC, will be unveiling a searchable pension litigation database, along with regular updates about trends and highlighted cases as pertains to financial issues. We started on the database over ten months ago and quickly realized that the volume of cases to be analyzed and catalogued dwarfed our original expectations.

The good news is that there are many things that can be done upfront to mitigate fiduciary risk. The questions for pension fiduciaries are threefold. Are they fully aware of all relevant risks? Do they know what has to be done? Are they ready to move forward?

We'd love to give you our take. Email us if you want to be notified of the pension litigation database launch and/or would like to get our thoughts about the challenges that loom ahead.

Editor's Note:
Please be reminded that we do not provide accounting, investment or legal advice. We provide independent research and analysis to pension fiduciaries and/or their attorneys in the areas of financial risk, derivatives, valuation, fee economics, disclosure best practices, questions of suitability and prudential process as relates to financial/economic issues. In addition, we offer training and consultation to boards, investment committees, trustees, regulators and pension-focused money managers in the areas of financial risk and valuation.