Administration March 26, 2012

Plan Sponsors Focus on More than Performance with Alternatives

March 26, 2012 (PLANSPONSOR.com) - Retirement plan sponsors are continuing to give investment allocations to hedge funds, private equity funds and other alternative investments.
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However, plan sponsors are no longer focused solely on performance but are also seeking more information on fund operations in order to assess the total risk facing pension assets invested with these funds. In response, alternative investment managers must ramp up their disclosure of investment and operational risk factors and reassure sponsors about the steps they are taking to control and mitigate risk, according to a new PwC report, Attracting Pension Plan Assets: What Alternative Investment Managers Need to Know.  


PwC identified nine major areas of risk that alternative investment managers may wish to consider when marketing to plan sponsors and other institutional investors: 

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1. Market Risks: Alternative investments involve varying degrees of market risk including equity, interest rate, foreign exchange and commodity risks, each of which can be exacerbated by the use of leverage. Fund managers can satisfy plan sponsor concerns by determining whether the fund’s portfolio risk management systems (e.g., VAR and stress testing) and hedging techniques can detect and mitigate risks. 

2. Liquidity Risk: Exotic instruments or other less-liquid investments used by fund managers may reduce the possibility of a quick exit for investors, especially if multiple investors try to exit a fund at the same time. Some funds are addressing this risk by offering monthly or quarterly investor liquidity after an initial lock-up period, or explaining diversification or stacking strategies that investors can use to mitigate the liquidity risk associated with extended lock-up periods. 

3. Valuation Risk: Investments in instruments such as distressed debt, direct loans, private equity or complex financial derivatives may be hard to value. Fund managers should explain the valuation practices and methodologies they have in place and provide documentation including, if possible, independent, third-party verification of investment values. 

4. Operational Complexity Risk: The inherent complexity of hedge fund operations, with multiple internal and external parties involved in executing strategy, can be magnified if internal controls are inadequate or if there is no effective segregation of duties between those who oversee operations and those who manage the portfolio. Detailing the best practices followed in managing these risks can resolve concerns. 

5. Regulatory Risk: Most hedge and private equity funds are not registered under the Investment Company Act of 1940 and lack the protections associated with mutual funds. To allay concerns, fund managers should communicate with plan sponsors about the oversight and controls to which they are subject, such as ERISA, FATCA or Form PF, and ensure compliance.  

6. Strategy Risk: Active management can lead to deviations from the stated strategy, which creates potential investment planning, diversification and risk control issues for investors. Fund managers are making this less of a concern by imposing rigorous internal controls and expanded transparency to reduce style drift.  

7. Counterparty Risk: Any transaction in which one party must rely on another to complete a transaction exposes an investor to counterparty risk, something which can be magnified by the use of leverage. Effective controls, including position limits or counterparty credit limits, can reduce these risks.  

8. Sub-advisor Risk: Investors have experienced tremendous market volatility, fraudulent investment schemes and increased regulatory scrutiny. Fund managers can address this through a due diligence program that identifies and prioritizes emerging trends and risks in sub-advisory relationships.  

9. Vendor Selection: The stability of third-party vendors in providing middle- and back-office services is increasingly critical, since these vendors frequently are instrumental to a manager’s operations. Transparent processes and procedures to evaluate service providers, including sub-vendors, are essential to determining the risk of operational problems or fiduciary infractions.

The PwC report provides specific steps that alternative investment managers should consider for each of these risks to communicate their capabilities and help plan sponsors resolve the concerns they may have about investing in alternative funds.  

The report can be downloaded from www.pwc.com/us/en/alternative-investment/publications.jhtml. 

Benefits March 26, 2012

U.S. Supreme Court Begins Hearing Health Care Reform Case

March 26, 2012 (PLANSPONSOR.com) – The U.S. Supreme Court began hearing the first day of oral argument about the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act (PPACA).
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According to the U.S. Supreme Court website, attorneys on behalf of 26 states have brought legal action and began arguments on Monday, March 26 (see “Supreme Court Sets Week Aside to Hear PPACA Arguments”).

On Monday, the court will hear arguments in regards to whether the Anti-Injunction Act applies to PPACA. The Anti-Injunction Act prohibits lawsuits on taxation bills from being heard until the tax is brought into effect.  If the court rules the Anti-Injunction Act applies, it will terminate any legal action against the PPACA until the PPACA tax penalty becomes effective on January 1, 2014.

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The hearing scheduled for March 27 will focus on the extent that the Commerce Clause of the U.S. Constitution delegates to the federal government the authority to regulate interstate commerce, and specifically whether the federal government can force someone who does not want to engage in interstate commerce to buy something. The specific issue asks if the refusal to participate in interstate commerce by an individual failing to purchase health insurance, generally known as the individual mandate, constitutes engaging in interstate commerce and is thus subject to federal regulation. There are legal precedents to which both sides can appeal. Some cases have found an unlimited authority on the part of the federal government. Other cases have stated that the delegated authority under the Commerce Clause is not without limits (see “Florida HCR Challengers Win on Commerce Clause Argument” and “Court Upholds Ruling that Health Care Law is Constitutional”).

The final arguments on March 28 will address the issue of the missing severability clause that would have protected the balance of the PPACA in the event that the Supreme Court declares another part of the PPACA to be invalid. Severability clauses are standard boilerplate for legislation. A severability clause was included in all but the final draft of the PPACA that passed the U.S. Senate. The U.S. House of Representatives considered the Senate version for action, and passed the Senate version without a severability clause.

The court will also hear arguments on the last day about the constitutionality of the federal government forcing states to participate in PPACA or be subject to the punishment of withholding Medicaid dollars.

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