Whether a company is small or large, chances are it offers employees a 401(k). But this well-intentioned benefit has become target practice for attorneys, with lawsuits against companies ranging from those with $10 million to tens of millions in assets.
Topic Archive: Fiduciary Responsibility
Someone would have to be living under a rock for the last year or so not to have noticed all the talk about Bitcoin and other cryptocurrency. The values have fluctuated quite a bit, but all the press makes it sound like cryptocurrencies are a great investment that can generate significant returns.
Ever see the movie Men In Black? One of my favorite lines is when Tommy Lee Jones says to Will Smith, “Fifteen hundred years ago, everybody knew the Earth was the center of the universe. Five hundred years ago, everybody knew the Earth was flat; and fifteen minutes ago, you knew that humans were alone on this planet. Imagine what you'll know tomorrow.”
My good friend and benefits attorney Ilene Ferenczy sends out an e-newsletter from time-to-time. The Ferenczy Flash always includes timely, practical information for plan sponsors and service providers. The edition she sent earlier this week highlights a very important point that often gets lost in the 401(k) shuffle - while all of the fiduciary rules are important, it is failing to comply with the Tax Code that is more likely to land most plan sponsors in hot water.
I was recently asked to write an article on ERISA Section 404(c). As I contemplated how to approach the article, I recalled many situations in which I have heard 404(c) pitched as the mythical silver bullet to save plan fiduciaries from the specter of liability associated with participant-directed investments.
An article appeared yesterday on CFO.com entitled “New 401(k) Obligations Heaped on CFOs” and it carried a tagline stating “New disclosure rules abound, but pay close attention or you could be sued by plan participants.”
Several weeks ago, I had a lengthy conversation with a prospective client (we’ll call her Alice) and her investment advisor. After the standard dialogue about fees, service guarantees, etc., the discussion inevitably turned to the retirement plan “F” word – FIDUCIARY. Alice had read this article and wanted to know if the advisor would be a 3(21) or 3(38) fiduciary.
Crikey! We’ve just discovered the rare non-ERISA 403(b) plan meandering along, oblivious to such details as filing Form 5500 or worrying about fiduciary responsibility. Wait…could it be this harmless creature only offers investments from a single vendor? Danger! Danger! Danger!
As an industry, we have spent a great deal of time over the last 2 years discussing issues like investment advice, default investments and fiduciary responsibility ostensibly for the purpose of improving retirement savings for employees. While these are important issues, we have been avoiding the elephant in the room – participants simply aren’t sufficiently equipped or disciplined to successfully manage their retirement savings.