Compliance October 10, 2017

Understanding Fiduciary Liability Insurance

In a world of heightened fiduciary scrutiny, plan sponsors need to pay close attention to the language of fiduciary insurance policies.
Reported by

As defined contribution (DC) plans become the main drivers of America’s retirement savings, a plan sponsor’s role as fiduciary is becoming highly scrutinized. Fiduciaries to a plan are legally liable to act in the best interests of plan participants and the Department of Labor (DOL)’s Conflict of Interest Rule is only expanding that role.

In recent years, the DC space has seen a wave of litigation surrounding the management of retirement plans. One common denominator in these cases is the argument over alleged excessive fees.

For more stories like this, sign up for the PLANADVISERdash daily newsletter.

According to Groom Law Group, these cases raise “allegations against fiduciaries for breaching their obligations to the plan and its participants by charging or permitting excessive fees and expenses for plan services provided by third parties, such as investment management, recordkeeping, and asset custody.” Another common practice being challenged is the use of proprietary funds. Oftentimes, fiduciaries are accused of offering investments from a financial institution sponsoring the plan or its affiliates for the sole purpose of benefiting the institution.

In either case, Groom Law Group suggests that the right kind of fiduciary liability insurance can mitigate the costs of fighting these claims. The firm warns that “over the last 10 years, the scope of so-called 401(k) ‘excessive fee’ litigation — another staple of the plaintiffs’ bar — has expanded to the point where every plan sponsor and plan service provider dealing with a 401(k) plan of significant size should be on notice that it may be the next defendant in this type of ERISA class action.”

Of course, all fiduciary liability insurance policies define their unique terms, conditions and limitations. But most have a few key factors in common. For example, coverage kicks in when the insured is facing an actual claim for a wrongful act allegedly committed by the insured. Groom Law says, “Generally, a claim may be a written demand for monetary damages or injunctive relief, a civil complaint, a formal administrative or regulatory proceeding commenced by the filing of a notice of charges or formal investigative order, or a written notice by DOL or the PBGC of an investigation against an insured for a wrongful act.”

However, this insurance can’t be used to restore losses to an employee benefit plan “when a plan sponsor or employer discovers that it made an error.” Fiduciary liability insurance can only defend against a claim and then “pay for any covered award entered against the insured up to the policy’s limit of liability.”

The firm adds that policy provisions “may be used to preclude coverage for indemnity payments that constitute benefits that are payable to participants or their beneficiaries under the terms of a plan, or that would have been payable under the terms of the plan had it complied with ERISA.”

But regardless of what protection a policy may offer, it is important to pay attention to who exactly is protected or defined as the insured. Groom Law points out that third-party providers such as investment advisers and investment managers are generally not protected by a plan sponsor’s fiduciary liability insurance. Even when relief sought is not a monetary loss, however, the insureds may still have coverage for defense costs.

Some policies have a duty-to-defend provision that allows insureds to select their own defense counsel. Groom Law notes that “due to the volume of the claims they handle, fiduciary liability insurance carriers commonly negotiate lower rates with the defense firms. The firm adds that “fiduciary liability carriers also typically have litigation management guidelines in place that help to ensure that the costs of defense are reasonable and necessary. These defense provisions are important because fiduciary liability policies typically pay for defense costs within the limits of liability, meaning that every dollar spent by the carrier on defense costs erodes the available limit of liability by that same amount. These types of policies are commonly referred to as eroding limits policies.”

Groom Law Group’s report, “Who May Sue You and Why: How to Reduce Your ERISA Risks, and the Role of Fiduciary Liability Insurance,” can be found at Groom.com.

The Markets October 10, 2017

Advising Women to Take More Investing Risk

Use of more conservative portfolios can result in women not being adequately prepared for retirement, new research warns.
Reported by

The reason why many women are more risk averse with investments than men is primarily due to income uncertainty, says Rui Yao, associate professor at the University of Missouri in Columbia, Missouri.

“The reason why men and women expect uncertain income is different,” she says. “Women are more likely to be caregivers to their parents or to raise children. Men are more likely to choose occupations with income uncertainty built in, such as becoming a car salesman. We found that income uncertainty reduced women’s willingness to take on risk—but that it increases men’s willingness to increase risk.”

For more stories like this, sign up for the PLANADVISERdash daily newsletter.

More conservative portfolios can result in women not being adequately prepared for retirement, Yao says. This is particularly true for single women, who are less risk tolerant than single men or married couples, she says. Thus, Yao suggests that advisers ask their female clients if they expect to leave the workforce in order to look after their parents or raise a family. If that is the case, then, perhaps, a more conservative portfolio makes sense. However, if that is not the case, “then, advisers should say that the latest research shows that men and women don’t really differ in their need to take investment risk. Further, they should point out that women live longer and really need to take on a riskier portfolio allocation, including equities, to compensate for their longer life.”

According to 2015 data from the Census Bureau, the average life expectancy for women is 82, compared to only 78 for men, notes Robert Massa, director of retirement at Ascende in Houston. And, according to 2015 data from the Bureau of Labor Statistics, on average, women earn 79% of what men earn, he adds. “So, if women are going to make up for this disadvantage, a sound, customized investment strategy will be needed,” Massa says.

“Women as investors tend to prefer more investment education from their advisers than their male counterparts,” Massa says. “They want an adviser who tries to provide education and speaks to them with respect. Once you’ve clearly laid out the unique challenges facing women as investors, you can explain why a less conservative investment strategy is vital to their long-term success.”

If you map out the effects of saving more money combined with the higher projected investment returns that can be generated by increasing the equity position in a portfolio on a graph for women, so they can compare the potential outcomes, they will often be much more receptive to an equity-based investment strategy, Massa says.

Regardless of whether she is working with a man or a woman on the retirement portfolio, Lori Reay, a partner and retirement plan consultant at DWC in Salt Lake City, Utah, says she tries to conduct one-on-one meetings.

“I think all investment advisers are stepping up to help participants, and I don’t think it is gender-specific,” Reay says. “For anyone to be prepared for retirement, the adviser is going to be more successful if they are sitting down face-to-face for one-on-one meetings.” If the adviser takes this approach, “then, the more successful the retirement plan will be and the outcome for participants will be.”

«