Court Deems MassMutual a Fiduciary for Setting Compensation
May 29, 2014 (PLANSPONSOR.com) – A plan sponsor’s lawsuit over revenue sharing payments has moved forward as a court found the sponsor's plan provider became a functional fiduciary by setting fees.
U.S.
District Judge Patti B. Saris, of the U.S. District Court for the District of
Massachusetts, noted in a recent opinion that under the Employee Retirement Income
Security Act (ERISA) a person is a fiduciary “with respect to a plan to the
extent (i) he exercises any discretionary authority or discretionary control
respecting management of such plan or exercises any authority or control respecting
management or disposition of its assets; (ii) he renders investment advice for
a fee or other compensation, direct or indirect, with respect to any moneys or
other property of such plan, or has any authority or responsibility to do so; or (iii) he has any discretionary authority or discretionary responsibility in
the administration of such plan.”
Saris
found MassMutual exercises the discretionary authority to determine its own
compensation by setting separate investment account management fees (up to a maximum),
which in combination with revenue sharing payments (RSPs), make up the provider’s compensation
package. “A reasonable fact-finder could determine that MassMutual functions as
an ERISA functional fiduciary under subsection (i) to the extent it determines
its own compensation, takes fees out of the separate accounts, and has the
discretion to offset some or all of the RSPs against management fees as its compensation,”
she wrote.
In
addition, the plaintiff in the case, Golden Star, Inc., argued that
MassMutual’s services to the plan (such as sending out checks to plan members
or reinvesting dividends) fall within the definition of “administration of the plan,”
triggering fiduciary status under subsection (iii) as well. Saris agreed that to
the extent MassMutual has discretionary control over factors governing its fees
after entering into its agreement with Golden Star for administration of the plan,
subsection (iii) is implicated as well.
Because
she concluded that MassMutual is a functional fiduciary under subsections (i)
and (iii) when it determines its compensation package for services provided in
the separate investment accounts, Saris said, she needs not analyze the plaintiffs’
other theories for triggering fiduciary duties.
The wider case centers on Golden
Star’s claims that MassMutual violated ERISA when it received revenue sharing payments
from third-party mutual funds. Golden Star alleges these payments were essentially
“kickbacks” that constituted prohibited transactions under ERISA, and violated
the fiduciary duties imposed by the statute. MassMutual moved for summary
judgment solely on the question of whether it qualifies as a “functional
fiduciary” within the meaning of ERISA. Saris denied its motion.
The opinion in Golden Star, Inc. v. MassMutual Life
Insurance Company is here.
May 29, 2014 (PLANSPONSOR.com) – Some of the statistics on 401(k) balances and coverage commonly tossed around are flawed, feels Drew Carrington of Franklin Templeton.
The defined contribution (DC) system
is in much better shape than the headlines that blare, “The U.S. retirement system
is a failure,” says Carrington, Franklin Templeton’s head of defined
contribution, investment only (DCIO) institutional.
Average balance statistics in 401(k)
plans are among Carrington’s least favorite. “It’s completely meaningless,” he tells
PLANSPONSOR. As an employee who has been with his current firm for eight
months, he points out, his own 401(k) balance at Franklin Templeton, given his
age, would make it look as though he is headed for utter retirement failure.
“You have to be much more nuanced
about the data,” Carrington says. Average balances or average retirement wealth
must be calculated using multiple accounts. “You have to subdivide further by
age, and frankly you have to subdivide by income,” he says.
The worker who lives in Nebraska
and makes $30,000 a year does not, in fact, need a million dollars to fund retirement—Social
Security is going to cover a significant part of retirement, which is the way
the U.S. system is built. Modest balances are sufficient to help some achieve a
full-income replacement ratio.
It’s all too easy to distort
numbers in headlines, Carrington says. He takes issue with statistics on
retirement plan coverage that indicate just half of Americans have access to a
plan. News about retirement statistics should talk about multiple accounts,
multiple careers and the percentage of Americans who are actually on track,
when Social Security is factored in, to replace a dignified sustainable retirement
number.
“And then what can we do to improve
those numbers?” Carrington asks, emphasizing that he is not saying the system
is in perfect shape. “Talking about average balances, or misleading survey data
about coverage is not only not helpful or educational, but it actually leads to
harmful discussions, and harmful potential policy solutions.” See “Retirement Readiness Not Accurately Gauged.”
As an example, Carrington discusses California’s statewide proposal to
cover workers who lack an employer-sponsored plan (see “Bridging the Retirement Savings Gap”). He feels it needs more deliberation. The picture is simply not as simple as imagining
a substantial number of people who have no retirement coverage and never will.
If you were to draw a Venn diagram of people in California with a full-time job
but no access to a plan, he says, some portion of that group will never have
retirement coverage. Another subset of people would have had a plan with a
previous employer. Another subset are young workers who haven’t had a plan in
the past but likely will in the future.
“Imagine that Venn diagram, moving
through time,” Carrington says. Now it is no longer a snapshot of who lacks coverage
today, but a picture of workers who don’t have coverage over the course of five
or ten years. The whole circle is larger, but the number of people who never
had coverage and never will is smaller.
The pool of workers who lack
coverage needs deeper analysis, Carrington feels, since some may be people who
worked for a big, Silicon Valley tech firm and now are with a startup. But the
state proposal mentions people who have never invested in the market, and is
building the system as if it’s a savings account for people who fear
volatility.
“Who are you trying to serve?” he
asks. “All people who currently don’t have coverage? Or this small subset? A
system designed to serve this small subset won’t serve the larger proportion of
the population.” Relying on headline statistics and assuming a permanent
have-not group could lead to a solution that may not be adequate for the
coverage problem, according to Carrington.
Carrington also considers job mobility as a factor in seemingly low participant retirement account balances. “It’s not a permanent
have, have-not problem,” he says. Imagine someone who works for an independent
local restaurant and has no access to a workplace retirement plan. Then they
get a job with a national restaurant chain and begin participating in a plan. They
may spend some years going back and forth between the two types of employment.
Bridging coverage gaps is the goal—not seizing on the individual as someone who
completely lacks coverage.
It is a mistake to take a snapshot
of plan access, or balance amount, or coverage levels, or balances for
near-retirees and question retirement savings adequacy. “You don’t know enough to answer that question,” Carrington says.
The snapshot does not delve into other assets, or access to a defined benefit
(DB) plan, or whether Social Security can cover a sizeable portion of the
individual’s retirement.
Carrington is impatient with scaremongering
headlines about Social Security going bankrupt. “You hear about surveys that
say there won’t be any money for Social Security,” he says. “It’s a terrible
misreading of the data. If we managed to be so incompetent as a nation that we
didn’t do anything at all to Social Security until the trust fund runs out in—what,
2030—we’ll still be paying Social Security taxes.” The amount of money coming in from
people’s paychecks will still cover some 70% of benefits, Carrington says. “It’s
a big cut, but it’s not zero,” he says.
The U.S. has some important tasks
to strengthen retirement, Carrington says. “We shouldn’t ignore the coverage
gap,” he says. “I’m not saying there aren’t things we need to do.” But he draws
the line at alarmist discussions that lead to thinking the system is a total
failure and needs to be restarted from scratch.
The broader media is not
focusing enough on the industry’s success, but Carrington admits it is not as
interesting a story to talk about the need for nuanced statistics. Auto
enrollment, auto escalation and default investing have dramatically raised participation
rates, he says. After the first wave of getting people into retirement plans, plan
sponsors, advisers and recordkeepers are now beginning to think of ways to
raise savings rates.
When the industry looks back on this period, Carrington says the question he will ask is, “Did we do all we could to make it better?”