IMHO: “Free” Wills

Over the weekend, I reacquainted myself with that episode of the HBO miniseries “John Adams” titled “Independence.” 

As a writer and editor, I watched with a special appreciation the part where Benjamin Franklin and John Adams are “tweaking” Thomas Jefferson’s draft—and the pain in the latter’s face as his “precisely chosen” words were modified.  All in all, a modest sacrifice, to be sure.  But I, for one, could feel his pain. 

That said, anyone who has ever found their grand idea shackled to the deliberations of a committee, who has had to kowtow to the sensibilities of a recalcitrant compliance department, or who has simply suffered through the inevitable setbacks all too frequently attendant with human existence must have at least a modest appreciation for the trials that confronted not only that document’s authors, but those then living in these not-yet-united states. 

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Without question, 1776 is one of those turning points in history, not just for this nation but, in the course of time, for the world as well.  And yet, from the perspective of those who, in 1776, put not only their property, but their lives on the line to achieve what we will commemorate this weekend, the prospects of success must surely have seemed unlikely.  Indeed, 1776 itself was full of disappointments for many supporting the cause of independence—and near disasters for George Washington’s Continental Army.  One can garner a sense for the change in tide by noting that Thomas Paine in January of that year published “Common Sense,” but before the year was out had turned his pen to “The American Crisis,” fretting about “sunshine patriots” in “times that try men’s souls.” 

However, before the year was out, Washington’s troops would cross the Delaware under unimaginable conditions and win a stirring victory at Trenton, on their way to a series of impressive but largely unappreciated victories against the British army in New Jersey.  Not that the worst was behind them: Less than a year later, Washington’s troops would winter at Valley Forge.  Independence may have been declared in 1776, but it was not won until 1781, and not official for two years more. 

The point, of course, is that we have much to be thankful for this Independence Day: for those who had the courage to stand up for the principles and ideals on which this nation was founded, for those who were willing then to take up arms to defend those principles and ideals against overwhelming odds, and those who have done so to this day.   

If we are to preserve those “unalienable rights,” if we are to continue to enjoy the freedoms of “life, liberty and the pursuit of happiness,” we must remember that the truths so eloquently espoused in 1776 may indeed be self-evident, but dictators and tyrants from time immemorial have sought to vanquish them.  It is easy to forget amongst the grilling, fireworks displays, and summer temperatures just how precious those rights are, and how rare still in this world.     

This Independence Day, we should remember that, “in the course of human events,” the battles that preserve those ideals for us and future generations are never really “won”; they must be fought for every day. 

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For those interested in learning more about the events noted above, I heartily recommend: 

1776” by David G. McCullough 

Washington’s Crossing” by David Hackett Fischer 

Almost A Miracle: The American Victory in the War of Independence” by John Ferling 

His Excellency: George Washington” by Joseph J. Ellis 

For those who prefer a “lighter” read (a la historical fiction), check out: 

“To Try Men’s Souls: A Novel of George Washington and the Fight for American Freedom” by Newt Gingrich, William R. Forstchen, and Albert S. Hanser

Court Approves Settlement in Revenue-Sharing Suit

 A federal judge has approved a $13.8 million revenue-sharing based settlement between a provider and the 401(k) plans it supports, but lawyers will take nearly half.

The settlement was approved last week by Judge Alfred V. Covello of the U.S. District Court for the District of Connecticut – some four years after Phones Plus Inc. brought the class action suit against The Hartford.  Plaintiff Phones Plus alleged that Hartford breached its Employee Retirement Income Security Act duties by receiving revenue sharing payments from various mutual funds, including Neuberger Berman Management Inc., which was also named as a defendant.

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The class action, filed on behalf of all of Hartford’s 401(k) clients, alleged that the Hartford provided its clients with a menu of investment options from which plans chose a subset to be offered to plan participants.  The suit alleged that Hartford received revenue sharing payments from the various mutual funds, based on a percentage of the plan’s assets, and that the Hartford’s receipt of the revenue sharing payments constituted a breach of its fiduciary duties under ERISA Section 404.  Additionally, the suit alleged that a prohibited transaction resulted from the Hartford’s participation in the revenue-sharing arrangement, and that Neuberger Berman also breached its fiduciary duties by failing to properly disclose those revenue sharing payments to the plan.

In approving the settlement (see Hartford Agrees to $13.8M Revenue Sharing Case Settlement), Judge Covello noted that 19 clients had opted out from the class that included all 401(k) plans for which Hartford acted as a service provider at any time between November 14, 2003, and March 1, 2010.

Furthermore, it was noted that “counsel to the settlement classes shall be entitled to receive reasonable attorneys’ fees, expenses and costs” – in the amount of $6,862,500.

 

 

In addition to the monetary settlement, the Hartford agreed to make a number of changes to its business practices, including:

  • taking provisions out of plan documents limiting a plan’s selection of investment options;
  • not enforcing provisions allowing it to invest plan assets in short-term money market instruments, cash, or cash equivalents;
  • asking state insurance regulators for the okay to change parts of its group annuity contract dealing with mutual fund availability to clarify that Hartford will not take out or substitute an investment option chosen by a plan, unless the option is no longer available;
  • adding language to its plan disclosures to make clear that the fund options offered in the plan submit revenue sharing payments to Hartford or its affiliates; and
  • giving plans a list of investment options with revenue sharing amounts paid by each.

 

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