By Mark Olsen, Managing Director at PlanPILOT
The number of class action 401(k) and 403(b) lawsuits in 2022 was significant, due in part to the U.S. Supreme Court decision vacating a Seventh Circuit decision in early 2022. The decision makes it easier for plaintiff lawsuits to survive motions to dismiss. As a result, in our Year Ahead in Review 2023 article developed last year, we shared that we expect the steady trend of plan monitoring and excessive fees to remain in focus. In this article, we provide actionable insights for plan sponsors to assist in taking steps to help in plan management.
What Can a Plan Sponsor Do to Mitigate Risk?
We have some ideas…
The idea of litigation is a daunting one. While there is simply no way to insulate your plan from litigation, there are steps plan sponsors can take to mitigate circumstances. Overarchingly, let’s start with the main point: Plan sponsors must be vigilant in their plan oversight. But what does that actually mean? We list specific action items below to help the plan sponsor community be in good stead should litigation arrive at their doorstep.
Critical Plan Oversight Activities
Document Decisions
Document, document, document. We see this written and talked about often, but we can’t emphasize enough how documentation can be on your side if done right. Meeting minutes should not be considered a meeting transcript, but it is helpful to approach meeting minutes in a manner that captures the high-level review and decision activities of a meeting. It can also be greatly beneficial to incorporate key rationale. While a dissertation isn’t necessary, insight into the rigor and final decision could go a long way in helping represent the choices made by committees.
Be Attentive to the Investment Policy Statement (IPS)
First, while an IPS is not required, it can be informative in helping committees meet plan goals and objectives, as well as support documentation. An IPS should not be a prescriptive document. Rather, it should provide guidance and be written in the context of your plan specifications and oversight objectives. Using rigid language or absolute triggers in an IPS can set committees up for failure and make it challenging for committees to pivot and evolve as appropriate without introducing risk. Using broad language that enables latitude for committees to apply their informed judgment is a valuable approach to help committees shift as necessary and make decisions in the context of the circumstances at hand. Most critical is to ensure that the spirit of the IPS provides guidelines to support the committee in meeting plan objectives. Rigidity is not your friend.
Establish a Monitoring Pattern and Stick to It
Whether it is related to plan fees, investment fees, performance monitoring, or provider monitoring, having a schedule or a checklist that outlines the (general) timeline of monitoring activities and steps the committee takes in monitoring can be a way to not only conduct prudent plan oversight, but in equal form, in the event litigation comes knocking, your committee has a track record to point to showing the diligent work conducted.
Be Consistent…and When You Aren’t, Document Why
Consistency in plan oversight is key; in fact, repetition can even be helpful as a means of maintaining consistency. (Side note: This doesn’t mean robotically conducting work where an assumption of apathy or lack of engagement could be assumed.) Still, it’s okay to change course. Markets change, plan and participant circumstances evolve, goals and beliefs shift, suitable new products and services come to market, and so on.
Retirement plan oversight is not a static exercise and it should adapt to changing circumstances. However, it’s important that committees be clear about the drivers of change and ensure that evolution is grounded in sound decision-making connected to the best interest of your participants. And, of course, documentation (see first bullet point) should capture why changes were made.
Investment Beliefs and Understanding Value for Cost
Fees and costs have the attention of everyone—nothing new about that statement—but it should not be a race to the bottom for the cheapest fees (unless the selections suit the plan objectives).
For example, skilled committees working with their advisors have likely established a point of view between active and passive investment management and use in their plan. Many litigation cases are rooted in casting a single (negative) dye that higher costs are bad, and, in turn, this can result in active investment options in the plan being considered “expensive.”
However, this is a linear approach to a very complicated topic. One way a plan sponsor can thread this needle is to have their committee establish investment beliefs with their advisor. This helps committees center their decisions pertaining to active and/or passive investment management on what value is received for the services given in connection with their belief set. This turns the linear argument on its head and enables committees to be very clear about how and why they established their preferred choice. Neither active nor passive are right or wrong for everyone; rather, the decision should connect to what the plan sponsor is trying to solve and ensure a commensurate trade of value for cost. Having an evaluated, discussed, and documented view on this topic can go a long way in clarifying and perhaps thoughtfully contesting any litigation matters.
Define Risk
We published an article on risk literacy last year, which outlined the various forms of risk most common in defined contribution plans: volatility, downside, inflation, participant behavior, retirement shortfall, and interest rate risk. This topic is a critical one for committees to tackle to help clarify plan objectives that inform their choices. Plan litigation seems to take a linear approach to risk as well. Plan committees that have clarity as to what risks they are trying to solve in order of importance can use that insight to drive their decisions. In turn, this can be documented and help them navigate and explain their choices.
For example, if a plan sponsor has done the work with their advisor and are most concerned about shortfall risk in retirement for their participants, this may lead them to select a glide path in their plan’s Qualified Default Investment Alternative (QDIA) with higher equity.
A second example is, if a committee is most concerned about volatility relative to a benchmark, this may lead them to select a passive investment management strategy. There is no single right answer for committees on how to assess and prioritize risk. Rather, the point is to take the time to be clear on developing risk literacy, risk hierarchy for the plan, and letting that drive their decisions, which could go a long way in helping reinforce decisions if litigation appears.
Fiduciary Training and Education
This one can be kept short. Committees are wise to periodically receive ongoing education in plan oversight and specific fiduciary training. This helps keep them up to date on all matters related to plan oversight, litigation trends, and universal understanding among members regarding their fiduciary obligations. This single act can increase awareness and help keep plan decision-making grounded in sound fiduciary principles.
The Bottom Line
While this list is not exhaustive and no plan can be insulated from litigation, we believe it is possible to make the process smoother and maybe even less expensive if your committee takes an opportunity to address the above points. Vigilance is key, and these actions establish documentation, clarity, and informed pursuits.
Want to learn more? Call us at (312) 973-4913 or email mark.olsen@PlanPILOT.com.
About Mark
Mark Olsen is the managing director at PlanPILOT, an independent retirement plan consulting firm headquartered in Chicago. PlanPILOT delivers comprehensive retirement plan advisory services to 401(k), 403(b), and 457 plan sponsors. His specialties include plan governance, investment searches, investment monitoring, and plan oversight. Mark is recognized as a leader in the industry and speaks at national conferences, including those organized by Pensions & Investments, Stable Value Investment Association, and CUPA-HR.