Retirement Industry Calls On SEC to Withdraw Proposal on AI, Conflicts of Interest

The proposal would limit the availability of educational and retirement readiness tools for participants, commenters say.

The comment period for the Securities and Exchange Commission’s proposal on artificial intelligence and conflicts of interest closed Tuesday. The proposal, which would require advisers to eliminate or neutralize all conflicts related to the use of predictive or optimization technology, received near-unanimous disapproval and many calls for a total withdrawal.

The proposal, first unveiled in July, would apply to any “analytical, technological, or computational functions, algorithms, models, correlation matrices, or similar methods or processes that optimize for, predict, guide, forecast, or direct investment-related behaviors or outcomes of an investor.”

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The breadth of this definition was the most common criticism in the comment file and has also been targeted in other public settings since the rule was first proposed.

Retirement sector professionals noted that this definition of predictive or optimization technology would apply to too wide a range of retirement educational and readiness tools. The ERISA Industry Commission noted in its letter to the SEC that the proposal would apply to ordinary retirement readiness calculators and chat bots. ERIC called on the SEC to fully withdraw the proposal.

According to the letter, educational tools “are highly dependent on technology to efficiently and effectively deliver services and information, including data that can be personalized to employees. This technology is ever-evolving and presents exciting opportunities to generate positive outcomes for workers. Regulations that create uncertainty, increase costs, and stifle innovation do not benefit workers and should be resisted.”

The American Benefits Council elaborated on this concern in its letter and likewise asked the SEC to withdraw the proposal. The ABC noted that the proposal would cover technologies that calculate for retirement savers “how much in total they need to have saved by retirement age or … how much money they can afford to spend annually during retirement,” since these technologies are predictive in character. The ABC added that the proposal would be “very counterproductive to our goal of achieving retirement security.”

Empower, unlike other commenters, suggested that the SEC either withdraw the rule or make specific changes. Instead of a full withdrawal, but in line with other commenters, Empower recommended making a categorical exemption for educational materials such as readiness calculators and allocation brochures.

Empower’s letter stated that many advisers offer educational tools for retirement plans, but if the required technology is swept up by a final rule and advisers are required to eliminate all related conflicts instead of mitigating and disclosing them, advisers may stop providing the tools at all. The letter explained that many advisers would be unlikely to take the risk that educational materials intended to encourage greater contributions to retirement accounts could be construed as a conflict.

Both the American Securities Association and the Investment Adviser Association requested that the SEC withdraw the proposal and instead stick to the principles of adviser fiduciary duties, which outlines the duties of care and loyalty advisers have to their clients. Already existing fiduciary duties would apply to the covered technologies anyway, but it only requires mitigation and disclosure of conflicts, rather than total elimination, their letters argued.

The IAA explained that “even where the covered technology would provide financial education, coaching, guidance, or advice that are in the best interest of clients, notwithstanding the presence of a conflict, the adviser would be per se prohibited from proceeding to use the technology without first eliminating or neutralizing the conflict altogether.”

The ASA letter was more critical and described the proposal as a “concept release in which a regulator surveys the industry to learn more about a topic and to better inform itself as to any unintended consequences.”

The SEC has not set a timetable for finalizing the rule.

GE Agrees to Pay Record $61M to Settle 401(k) Lawsuit

The settlement is considered the ‘largest ever’ in a lawsuit alleging mismanagement of a retirement plan’s in-house funds, according to court filings.

After six years of litigation, General Electric Co. has agreed to pay $61 million to settle class action claims in Haskins et al v. General Electric Co. et al that underperforming funds were the only actively managed options available to plan participants, costing employees millions of dollars, according to the settlement agreement filed by the plaintiff.

A court filing from the plaintiffs stated that the settlement is the largest in an ERISA case alleging a retirement plan improperly offered proprietary funds.

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In the original complaint, filed in 2017, Kristi Haskins, Laura Scully and Donald Janak, all participants of GE’s 401(k) plan, alleged that GE representatives encouraged the plan’s participants at company meetings to invest their 401(k) account assets in GE’s proprietary mutual funds, which GE Asset Management managed until July 1, 2016. The plaintiffs, represented by Sanford Heisler Sharp LLP, claimed these funds underperformed relative to comparable investment options since at least 2011.

The participants further claimed that GE refused to consider adding comparable, better-performing funds, removing any of the GE funds or replacing the managers and that GE breached its ERISA duties of loyalty and prudence to monitor and remove the funds from the plan.

Around the same time these alleged breaches took place, GE was considering potential buyers for GEAM, which was ultimately sold to State Street Advisors for $485 million in 2016. The participants claimed that GE kept the underperforming funds to keep GEAM’s assets under management elevated and to collect fees, inflate the sale price of GEAM and use the proceeds to pay down debt GE owed to its underfunded defined benefit pension plan.

The plaintiffs’ damages expert calculated reasonable recoverable damages to be approximately $283 million, the court filing stated. The cash settlement of $61 million represents approximately 21.5% of the alleged damages. The attorneys representing the class of similarly affected plaintiffs will also apply for “reasonable attorney’s fees” of up to one-third of the settlement amount.

The class represents about 250,000 GE employees participating in the plan during the class period from January 11, 2011, through June 30, 2016.

Charles Field, chair of the financial services litigation group at Sanford Heisler Sharp, wrote in a statement, “We are pleased to have achieved an ERISA settlement of this magnitude, the largest ever in an ERISA case alleging a retirement plan improperly offered proprietary funds. It is a great result for GE employees who had invested in the GE Funds.” 

The settlement must be approved by the United States District Court for the District of Massachusetts. A preliminary hearing has been scheduled for October 17.

GE, represented by attorney James Fleckner of Goodwin Procter, sent the following statement:

“While we deny the claims made in this lawsuit, we are pleased to put this matter behind us,” a GE spokesperson said. “We continue to manage our 401(k) plan in the best interests of participants.”

 

 

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