Some of you hopefully saw my recommendation the other day concerning this morning’s webinar on 401(k) plan fees and the attendant obligations of fiduciaries. The webinar discussed in detail the obligations of plan sponsors and other fiduciaries with regard to 401(k) plans and their accompanying fees. On the key issue of how to avoid incurring liability for breach of fiduciary duty as a result of the fees incurred by 401(k) plans and their impact on plan performance, the speakers emphasized  a commitment to due diligence.  In particular, the speakers favor a systemic and periodic review of the entire issue of the fees affecting the plan, and proper investigation and selection of funds and advisors with the issue of fees firmly in mind. In other words, don’t put the plan together without thinking about the issues of fees and ensuring that the applicable fees are consistent with industry benchmarks, and even after you do that, don’t just forget about the issue, but instead return to the topic regularly and make sure fees and performance remain appropriate. There is no magic wand to protect against liability exposures of this nature, but a documented consistent course of conduct that makes certain that fees remain consistent with relevant benchmarks will go far towards insulating fiduciaries from liability on the basis of excessive plan fees.

In some ways, the entire issue reminds me of a story a well-seasoned money manager told me about his firm’s selection many years ago to manage a portion of the funds of a municipal pension plan. The plan selected multiple advisors, each charged with a different portion of the assets, and each was assigned an appropriate benchmark against which its performance would be measured. Each was also told that after a set period of time, the plan would review all of the managers’ performances as against the applicable benchmarks, and the trailing performers would be replaced, and the others would continue to manage their portions, at least until the next scheduled review, at which point the trailers at that point would be replaced.

Isn’t this exactly what we mean by diligent, reasonable conduct by fiduciaries – a consistent, regular effort to ensure that fund assets are being managed to the advantage of participants, based on a comparison to appropriate benchmarks?