The
8th U.S. Circuit Court of Appeals agreed with a district court finding that the ABB fiduciaries breached their duties to
the plan by failing to diligently investigate Fidelity and monitor plan
recordkeeping costs, but it agreed with Fidelity and ABB that the district
court relied on hindsight in its ruling that the switch from the Vanguard
Wellington fund to Fidelity Freedom funds violated their fiduciary duties under
the Employee Retirement Income Security Act (ERISA). Fidelity was also found
not liable for breaches concerning its use of “float” income.
Schlichter
recently told PLANSPONSOR, his appeal to the Supreme Court contends it is
inappropriate to give such discretion to plan fiduciaries that have already
been proven by the same appeals court (and as part of the same case, no less)
to have breached their fiduciary duty. The plan fiduciaries have already been
shown to have made decisions that were not in the participants’ best interest,
he says, so why should their motives for switching to the Fidelity funds be
interpreted charitably by the court?
The Supreme Court did
not give a reason why it will not review the Tussey case. Last month, it agreed to review another case involving fees and monitoring of a retirement plan, Tibble v. Edison. The issue in that appeal is whether the Employee
Retirement Income Security Act (ERISA) statute of limitations applies to the
duty to monitor investment funds of the plan.
Senate Committee Changes Could Impact Retirement Industry
Midterm election results are often interpreted to mean different and contradictory things—but there appears to be some consensus in the retirement industry about the new political landscape in Washington.
More than a week out from the midterms there are a few U.S. House
and Senate elections that are still too close to call. Published reports in the
New York Times and other sources put the current count in the House of
Representatives at 184 Democrats to 244 Republicans. In the Senate, where
control shifted from blue to red, the tally is 46 Democrats to 53 Republicans. Republicans
also fared well in state elections, taking an even stronger gubernatorial
majority and expanding control in the nations’ state legislatures.
The Senate’s shift to Republican control is important
because it brings more unity to a long-divided Congress, but the result is muted
by the fact that President Obama still has two years in office, notes with Judy
Miller, director of retirement policy at the
American Society of Pension Professionals & Actuaries (ASPPA) and executive
director of ASPPA’s College of Pension Actuaries. She tells PLANSPONSOR that
the shift in Senate control is probably most important for the retirement
planning industry because it implies a change in leadership for a number of key
committees, through which any substantial retirement or tax reform legislation
will likely move during the next two years.
“The Senate Committee on Health, Education, Labor and
Pensions, or ‘HELP’ for short, is an example where the midterm election results
shook things up,” Miller explains.
Until last week, Senate committees were all chaired by
Democrats. In the case of the HELP committee, former chairman Tom Harkin
(D-Iowa) had previously announced plans to retire, meaning he would have been
replaced by Senator Patty Murray (D-Washington) had the Senate remained under
Democratic control. Now Senator Lamar Alexander (R-Tennessee) is in line to
become chairman of the HELP Committee at the start of the next Congress.
“Senator Alexander is much better known for his interest and
focus on education issues,” Miller says. “It’s hard to know at this point
exactly how this change will play out, and HELP is only one step in the
process, but we feel it’s one of the more important changes that occurred in
the midterms. Truly it could change how prominent retirement issues will be in
the work of the HELP Committee in the next two years.”
Other
industry watchers echoed that sentiment. One prominent industry advocacy organization suggested the
departure of Senator Harkin will also likely mean the death of his “USA
Retirement Funds Act”, a piece of legislation he had introduced several
times trying to expand access to workplace retirement savings. Miller agreed
with that assessment, with a few caveats.
“Did the industry lose an advocate in Harkin? He certainly
paid attention to retirement planning issues, but of course there were people
who had concerns with his bills and ideas in the area, so not everyone would
say that his departure is a bad thing,” Miller adds. “In fact, I believe his
bill as it was most recently introduced had no Republican co-sponsors, so he
was still a divisive figure, even though he was interested in the retirement
outlook for American workers.”
There were several Democratic co-sponsors on the most USA
Retirement Funds Act bill that could take up the initiative, Miller says. These
are Senators Sherrod Brown of Ohio, Tim Johnson of South Dakota, and Brian
Schatz of Hawaii.
“Senator Brown, in particular, may be an important ally to
the retirement industry moving forward, because he is on both the HELP and the Senate
Finance committees,” Miller adds. “I have not yet heard whether he or any of
the others will try to move forward on the USA Funds Act. Again, there were no
Republican co-sponsors on the bill so it’s hard to see it succeeding in the
near term even if it is brought up again.”
Miller
says the other piece of the equation that has changed substantially is the
leadership of the Senate Finance Committee.
“Senator Orrin Hatch [R-Utah], who takes over as finance
chair with the new Congress, has demonstrated that he is interested in
retirement issues,” Miller says. “In fact, he has a bill that would make some
real changes, known as the Secure
Annuities for Employee (SAFE) Retirement Act, so this will be an important
one to watch.”
Miller
notes that ASPPA and other industry groups are “particularly fond” of Title II
in the Hatch bill, which would expand the availability of qualified retirement
plans among private sector workers, especially for employees of small businesses. For
example, the bill includes a new “Starter 401(k)” option to encourage
businesses to establish retirement benefits, and would provide employers with
additional time after the end of the year to set up a company retirement plan. The
SAFE Retirement Act would also significantly reduce administrative burdens
through provisions such as streamlined plan amendment and restatement
processes, and by establishing rules for electronic disclosure to plan
participants and beneficiaries.
Given that Hatch takes on leadership of a powerful committee at the same time a Republican majority is installed in Congress could spell success for the SAFE Retirement Act, Miller says. She was quick to add that even this result is far from certain, however.
Looking beyond individual personnel changes, Miller says the burgeoning pressure to get some type of tax
reform done will be concern No. 1 as the new Congress sets up for business.
“When it comes to tax reform, we see that there is an
overriding desire to pay for any tax reform, especially among the majority Republicans,”
Miller says. “This leads people who otherwise might be supportive of our
industry to come out with some proposals that are troubling. It’s the need to
raise additional revenue that is always troubling for our industry, and given the confusion that exists in Washington around tax deferrals versus a true tax deduction, this could imply negative outcomes.
“So if you look at, for example,
the 2014 Tax
Reform Act (TRA) from Dave Camp [R-Michigan], chairman of the House’s Ways
and Means Committee, it would raise a lot of money out of the retirement
savings area,” she explains. “That’s an area where we have real concerns moving forward into 2015. We’re
watching closely to see whether this proposal comes back, or any others like it.”
“Maryland
comes to mind here, as well as Illinois,” Miller explains. “The party change
may be expected to have an adverse effect on that effort, but at this point
it’s still hard to predict how all of that will play out. Retirement policy is
often perceived as being bipartisan, so it’s not necessarily true that a
Republican governor will be less open to establishing a state-run retirement option
for private workers.”