Handling Fiduciary Responsibility

Choices of providers and even monitors of outsourcers proliferate, but plan sponsors are still stuck with liability.

With expanded 401(k) fee disclosures to employees this summer likely to focus even more attention on retirement plans, plan sponsors may want to review their service providers and the burden of fiduciary liability.

While the Employee Retirement Income Security Act (ERISA), which governs workplace retirement plans, mandates that plan sponsors get outside expert help when they don’t have enough expertise in-house, that doesn’t relieve companies of their fiduciary responsibility. Outsourcing requires vigilance, too.

Consider the cautionary tale of several small plans that entrusted fiduciary responsibility to someone once considered a stalwart in the field.

Matthew Hutcheson, who co-wrote the book 401(k) Ethos, was regarded as a go-to person for all things fiduciary and testified before Congress, recently was indicted for wire fraud after allegedly stealing money from the plans for which he acted as fiduciary.

Hutcheson’s alleged misdeeds are a reminder that companies face a daunting task in choosing the right service providers and keeping tabs on them, says Knut Rostad, a lawyer and chairman of the Committee for the Fiduciary Standard.

“Outsourcing the task does not get rid of the responsibility,” Rostad says. “[Hutcheson’s indictment] is a reminder of that.”

Smaller plan sponsors typically do not have ERISA experts in-house and now have more choices of providers, from record keepers to outsourced fiduciaries and all levels in between. Brokerage firms like Merrill Lynch are training their representatives to serve as fiduciaries so they can advise smaller retirement plans.

Meanwhile, Millennium Investment & Retirement Services (MIRA) and Rosenbaum Law Firm P.C. recently launched an outsourcing service called Fiduciary Freedom Solutions that will review a retirement plan’s expenses, monitor service providers such as investment managers and record keepers, and review the plan’s tax forms. MIRA and Rosenbaum are initially targeting sponsors with 500 or fewer employees and charging a flat fee, typically about $5,000 a quarter.

James Holland, director of business development for MIRA, says the Millennium/Rosenbaum solution is “a complete outsourcing of the service, with as much legal liability removed as possible.”

Holland is careful, however, to remind clients that the buck always stops with them.

“In the end, the plan sponsor is always responsible for the people they hire,” he says, “They have to meet with us, they have to monitor what we do, and they have to converse back and forth with us. Other than that, we’re going to assume all of the rest of the liability of the plan.”

Once a company has picked a fiduciary, or indeed any provider, it must continue to monitor them, no matter how much or how little of the process they handle, because even administrative duties can trigger fiduciary liability, says Richard DeFrehn, administration consulting practice leader at Sibson Consulting, pictured at right.

“You are still on the hook,” he said. “To make sure you’re protected from a fiduciary perspective, you must constantly monitor your vendor, to make sure they’re providing everything they need to provide.”

“Continue monitoring and checking, and pull in other experts to check on that vendor, if you don’t have the expertise yourself,” DeFrehn adds. If a problem is discovered that isn’t fixed in a timely manner, or if the vendor doesn’t allow an independent review, he says, “that’s a sign that a change is needed.”


For more about Matthew Hutcheson, see Fiduciary Pleads Not Guilty to Fraud.

For more about changes in the government’s rules for fidicuaries, see Making More Fiduciaries.


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