Plan Sponsors Must Be Given Deference in Lawsuits Challenging Ambiguous Plan Terms
A federal appeals court found a district court did not apply the correct standard of review in a case challenging the calculation of lump-sum payments from a defined benefit (DB) plan.
In a lawsuit in which the 6th U.S. Circuit Court of Appeals admitted “This is not an easy case,” the appellate court remanded it back to a district court to redefine the class for “damages” and award damages to the newly defined class.
The case was brought by retirees of the Norton Healthcare defined benefit (DB) retirement plan, accusing the plan of miscalculating lump-sum distributions. The 6th Circuit first denied Norton’s motion to dismiss the case, saying the fact that the parties could not agree on the recalculation of benefits does not make the district court’s judgment less final. “The district court answered all the parties’ merits questions, and found that Norton had misapplied the terms of the Plan. The district court then told the parties exactly how to recalculate those Retirees’ benefits—by using the Retirees’ proposed formula. Thus, there are no unanswered legal or equitable questions in this case. Norton also does not contend it lacks the data necessary to perform the calculations, or that the parties dispute the accuracy or authenticity of the relevant records, so there are no unanswered factual questions either. It is undoubtedly true that the calculations required here are complex and time-consuming… The need for an advanced understanding of applied mathematics to obey an order of the court does not make that judgment any less final for our purposes, the appellate court stated in its opinion.
However, the 6th Circuit noted that Firestone Tire & Rubber Co. v. Bruch, in which an arbitrary-and-capricious standard of review is required by the court if the plan “gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,” should have been used by the district court. The district court had considered the doctrine of contra proferentum—which a standard used to construe ambiguous terms against the drafter of a contract.
The appellate court said, “contra proferentum is inherently incompatible with Firestone deference. Thus, we hold that when Firestone applies, a court may not invoke contra proferentum to “temper” arbitrary-and-capricious review.”
The 6th Circuit found “tension” in the terms of the plan document, but no ambiguity. However, it noted that the Employee Retirement Income Security Act (ERISA) requires that any lump-sum alternative be the “actuarial equivalent” of the basic-form benefit, and because the district court did not address actuarial equivalence, a remand is necessary to answer this question. In addition, since the district court was obligated to consider the evidence in the light most favorable to Norton, the appellate court said this would “naturally” include Norton’s experts’ explanation of how the actuarial conversions work.
“Because there is a genuine issue of material fact, and because we have altered the district court’s interpretation of the plan, neither party is entitled to summary judgment on this question. We therefore vacate the district court’s grant of summary judgment and remand for further examination of the actuarial-equivalence issue,” the 6th Circuit wrote in its opinion.
Regarding a statute of limitations issue on the retirees’ claims, the appellate court agreed with the retirees that the district court should have applied a longer limitations period to their underpayment claims. The appellate court noted that “ERISA does not explicitly provide a limitations period for Section 1132(a)(1)(B) claims,” so “courts fill the statutory gap using federal common law.” In previous cases, it has held that “when a plaintiff seeks benefits under the plan and those claims depend on alleged violations of ERISA’s statutory protections, Kentucky’s five-year limitations period applies.” However, when a claim is based on the contract alone, then Kentucky’s longer statute of limitations—15 years—for contract claims applies. To the extent that the retirees’ claims are based solely on the improper interpretation of the plan terms, the 6th Circuit said the longer contract limitations period must apply.
Regarding the district court’s class certification, the appellate court said it is clear from the record that the amount of any individual class member’s award may vary wildly depending on their circumstances. It said this should have prompted the district court to consider the due-process concerns highlighted by the Supreme Court in Dukes v. Wal-Mart Stores. “On remand, the district court must address this issue prior to certifying a damages class under subrule (b)(2). In sum, to the extent that the district court certified the class for plan-interpretation purposes, that decision is affirmed. To the extent that its certification extended to damages calculations, we vacate the certification and remand for further proceedings consistent with this opinion,” the opinion states.
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ABG Brings in Business Development Officer for Retirement Plans and HSAs; FIS Group Hires SVP to Manage Sales and Marketing; BPAS Joins LPL Financial Retirement Partner Program; and more.
The California Public Employees’ Retirement System announced that Ted Eliopoulos, CalPERS’ chief investment officer (CIO), is leaving the pension fund in order to relocate to the east coast to be closer to family. A search for his permanent replacement will begin immediately.
Eliopoulos will remain chief investment officer until a new CIO is named and assist in the transition through the end of 2018.
“With two daughters in college, and one with health considerations that require my wife and me to be within reasonable distance, we have decided to relocate to New York City where they both will be in school,” says Eliopoulos. “Due to this fact, I will be stepping away from CalPERS by the beginning of 2019.”
“It’s been extremely rewarding to have helped steward an investment institution that serves so many hardworking and deserving California families. I am confident the transition to a new CIO will be seamless as I leave the office in the hands of some of the most skilled investment professionals in the industry,” Eliopoulos continues.
“Under Ted’s leadership, the investment office has greatly reduced the cost and complexity of the investment portfolio and increased transparency around fees,” says Marcie Frost, CalPERS CEO. “Because every dollar we save goes back into the fund, our members will directly benefit from those cost savings for years to come. Ted has always been guided by our fiduciary obligation to our members and the fund.”
As CIO, Eliopoulos managed an investment portfolio of more than $350 billion, comprising both public and private assets, and a team of nearly 400 investment professionals. During his tenure, Eliopoulos implemented the Vision 2020 Strategic Plan, which sought to reduce the complexity of the portfolio, reduce fees, and better manage risk.
Under Eliopoulos’ leadership, CalPERS established its first Emerging Manager Plan in 2012 and the Investment Office’s first Diversity & Inclusion Committee in 2016. He also established CalPERS’ first Governance and Sustainability Plan and the Opportunistic Credit Program in 2016.
Eliopoulos joined CalPERS in 2007 as senior investment officer for the Real Estate division and the Real Assets unit. Following the financial crisis, he led the effort to restructure the asset class, refocusing on core investments in real estate and infrastructure that generated stable returns. He continued this work across all asset classes when he was appointed interim CIO in June 2013 and later as the permanent CIO in September 2014.
“Ted’s commitment to the long-term health of the Fund has been unwavering,” says Henry Jones, chair of the Investment Committee. “It has been an honor to work with him, and we are incredibly grateful for his service to California over the past decade.”
Mesirow Adds U.K. Based SVP
Mesirow Financial hired Amy Middleton as senior vice presidentwithin its Currency Management business. Based in the U.K., Middleton will be responsible for interaction with the group’s global client base, performing bespoke portfolio research initiatives in partnership with the CEO and advising on investment strategies.
Middleton has over 16 years of currency management experience. Prior to joining Mesirow, she was a senior FX portfolio manager and quantitative researcher at SSGA. Previously, she was the founder of FX Analytical Solutions Ltd, an FX consultancy company, senior quantitative currency product strategist at Millennium Global Investments, London, and vice president within the FX quantitative research group at Bank of America, London.
“Amy brings quantitative skills and FX knowledge that will be instrumental in enhancing our ability to provide high quality currency risk management solutions to our global client base,” says Currency CEO, Joe Hoffman. “I am pleased she shares our client-centric approach and am confident she will help us continue to add value for our clients now and well into the future.”
P-Solve Rebrands to River and Mercantile Solutions
P-Solve announced it intends to reposition its brand to River and Mercantile Solutions effective July 1.
The alignment of a consistent brand across the River and Mercantile Group reflects the increasing degree to which the macro thinking across the business is used to develop the investment views and advice for all the group’s clients, the firm said.
“Re-branding P-Solve to River & Mercantile Solutions defines our identity as investment and actuarial specialists focused on the needs and desired outcomes of our clients. The alignment of a consistent brand across the Group will help us streamline our messaging in the marketplace across all of our divisions going forward,” says Ryan McGlothlin, P-Solve managing director.
P-Solveis the division of River and Mercantile Group PLC that provides investment consulting and fiduciary management services to institutional investors including actuarial and annuity placement services in the U.S. The firm provides services to predominantly defined benefit (DB) and defined contribution (DC) retirement plans as well as to insurance companies, insurance captives, endowments, and foundations.
River and Mercantile Group PLCoperates through four principal divisions: Solutions, including both Advisory (investment, actuarial, annuity placement) and Fiduciary Management (OCIO); Derivative Solutions, providing structured equity and liability driven investing; Equity Solutions, providing both U.K. and global equity strategies; and the Multi Asset division, providing Dynamic Asset Allocation and other multi asset based solutions.
ABG Brings In Business Development Officer for Retirement Plans and HSAs
ABG Retirement Plan Services (ABG) has added Don Shafer as senior business development officer, focused on delivering retirement plan and health savings account (HSA) services to financial institutions and their clients.
Shafer most recently was a senior vice president with Heartland Bank and Trust Company focused on business lending and business development for the Peoria Area. He is a 1976 Economics graduate of Illinois State University. He is a also a graduate of the Peoria Area Chamber of Commerce Community Leadership School and Political Action School.
“We are committed to leveraging our competence in retirement plan operation and our focus on business development through financial intermediaries as a major channel to reach our objectives. Don knows banks and retirement plans. He is well-known in Peoria and in the banking community as a person with depth, great work ethic, and strong relationship building ability. Bringing Don on board is reflective of the firm’s commitment to continue developing our already strong relationships with financial institutions,” says John Blossom, president and CEO of ABG Retirement Plan Services.
FIS Group Hires SVP to Manage Sales and Marketing
FIS Group announced that Robert Morier has joined the firm as a senior vice president of sales and marketing. He will oversee FIS Group’s marketing and sales efforts, and will report directly to Tina Byles Williams, CEO and CIO of FIS Group.
“We are delighted to welcome Mr. Morier to the team,” says Byles Williams. “He brings over 18 years of experience in sales and marketing strategies for global and non-U.S. equity and debt investment products, which serves toenhance our continued commitment to meet and exceed our client’s performance objectives.”
Morier joins FIS Group from Global Evolution USA, where, as managing director, he directed the launch of its emerging and frontier sovereign debt strategies for North American institutions. He held previous directorships overseeing institutional investments at ClearBridge Investments, Indus Capital and Artio Global Investors. He also served as a vice president of institutional relationship management at Goldman Sachs.
Morier has a bachelor’s degree in history from the University of Vermont. He is an advisory board member for the University of Vermont Grossman School of Business, and has been a Toigo Foundation mentor since 2009.
Trinity Pensions Consultants Opens Indianapolis Sales Office
Trinity Pension Consultants is expanding its presence in Indiana with a new sales office opening in Indianapolis. Retirement Plan Consultant Aaron Stratman will be heading theoffice. This follows the company’s growth into the Kentucky market in 2014.
In preparation, Stratman trained closely with Kevin Bergdorf, Trinity principal and founder. Bergdorf, who spearheaded the Kentucky expansion, said, “Aaron is driven and well-versed in the complexities of qualified retirement plans. More importantly, he’s honest and personable. We feel confident in his ability to build relationships and impact the wealth management space.”
An independent, non-producing third-party administrator (TPA) and actuarial firm, Trinity focuses on advanced plan design. The company prides itself on its transparency with financial advisers, plan sponsors and investment providers.
John Hancock Promotes Sales Associates to Regional VP
John Hancock Retirement Plan Services (JHRPS) promotedPreston Carboneto regional vice president with a focus on southernWisconsin, westernIllinois and easternIowa. In this role, he is responsible for sales and relationship development with financial representatives and plan consultants throughout the territory. He reports toKent Lepard, divisional vice president, JHRPS.
“We are very pleased to promote Preston to this position,” saysBob Carroll, national sales manager, JHRPS. “He has shown a tremendous understanding of the retirement plan marketplace and consistently demonstrates a great ability to help advisers as they serve clients and participants.”
Carbone joinedJohn Hancockin 2011 in JHRPS’ consolidation area where he worked directly with 401(k) participants to help consolidate retirement assets. Subsequently, he became a retirement plan sales associate in 2013 working directly with financial advisers on 401(k) plan sales and then a business development director responsible for uncovering and increasing sales and maintaining key broker/dealer relationships through multiple distribution channels.
Carbone earned a Bachelor of Science in Finance from Bentley University. He is an accredited wealth management adviser and holds Series 7 and 63 licenses in addition to a life insurance license.
BPAS Joins LPL Financial Retirement Partner Program
BPAS has become a member of the LPL Financial Retirement Partner program.
Through its Roadways to Retirement program, BPAS serves the full range of defined contribution (DC) and defined benefit (DB) plans in collaboration with advisers and corporate trustees. BPAS serves as recordkeeper, third-party administrator (TPA), clearing firm, and asset custodian under one roof, while the adviser or corporate trustee works with the employer on fiduciary matters, participant education and key success measures.
“Over the years, we’ve worked with dozens of LPL offices in offering the BPAS solution to individual plan needs,” says Paul Neveu, president of BPAS Plan Administration & Recordkeeping Services. “After seeing LPL growth and considering industry trends toward fee normalization, open architecture, and HR outsourcing, this move made perfect sense for our firm. We’re excited about the solutions that BPAS can provide to LPL advisers around the country.”
“Advisers like BPAS because of the freedom we provide to let them do their business–from big things to little things. True open architecture on investments; fee normalization; calculating their fees and paying them each month; administering model portfolios; the MyPlanLoan program, full support of auto-enrollment, online enrollment, and so much more,” adds Neveu. “We look forward to sharing the depth of capabilities, technology, and resources that BPAS can offer LPL advisors to help them stay competitive and grow their retirement plan business.”
Through the LPL membership, information on BPAS is available to LPL advisers for use on individual bids and opportunities. And, the BPAS national sales team will work with advisers locally to help build their business.
PanAgora Selects Past Head to Lead Business Strategy Team
PanAgora Asset Management announced that Yosef Zweibach has been appointed as head of Business Strategy & Investor Relations. In this new role, Zweibach will be responsible for helping to enhance and expand the firm’s external exposure with institutional allocators while assisting PanAgora’s distribution team with value-added and solution-oriented initiatives to assist PanAgora’s client base.
Prior to joining PanAgora, Zweibach spent more than eight years at Barclays Capital where he served as global head of Quantitative Sales. During his time with the firm, he assembled and led a team of professionals that became one of Wall Street’s most respected quant units. Prior to Barclays, Zweibach served as a paratrooper in the Israeli Defense Forces.
“Yosef is a proven investment leader with an extensive background in systematic quant investing that will benefit us as we continue to enhance our platform and meet investors’ needs,” says George Mussalli, chief investment officer, Equities at PanAgora. “We are looking forward to benefiting from his industry relationships and expertise.”
Zweibach earned a B.A. in Management from Boston University. He is currently a board member of the Society of Quantitative Analysts and on the membership committee of the Q group, an institution that provides quantitative research from scholars in the field to investment professionals.