I don’t have much to add to this Wall Street Journal story on the interplay of spousal consent rules, ERISA and beneficiary forms in 401(k) plans, but I did want to pass it along. There may be no more common fact pattern in either my years of practice or in the case law than that of the deceased employee who meant to leave the assets of his 401(k) plan to his children from an earlier marriage – and filled out a beneficiary form so saying – but whose assets instead ended up paid out by the plan to the employee’s second wife, who was not named a beneficiary but, at the same time, never waived her right to the 401(k) assets. In most of these instances, the employee never knew that spousal consent/waiver rules would result in the widow receiving the benefits, no matter what the employee intended while alive or what he wrote in the beneficiary form.

For many people, the terms of their plans are a riddle wrapped up in an enigma, and without outside guidance, they are unlikely to get it right if they try to leave the assets in their 401(k) plans to anyone other than their current spouse.
 

By the way, I never did make available a full copy of the article I referenced in this blog post here, which I wrote for the Spring 2011 edition of the Journal of Pension Benefits. The article analyzes excessive fee litigation in light of the trial rulings in Tibble, against the backdrop of the motion to dismiss ruling in Hecker, and essentially concludes – as you might expect a trial lawyer to conclude – that the world (including that of fiduciary decision making with regard to investment selections in plans) tends to look a lot different after discovery and with evidence in hand, than it does when a complaint is drafted. You can find the article here.

Here is a very nicely written opinion out of the Third Circuit in Renfro v Unisys rejecting a breach of fiduciary duty claim alleging excessive fees in the mutual fund options in a company’s 401(k) plan. A few particular points are noteworthy. The first is the detailed explanation in the opinion of the reason that the directed trustee, Fidelity, was immune to suit for those decisions. The opinion lays out the written structure used by Fidelity to avoid being exposed to claims of this nature and, quite frankly, it is really well done. Pats on the back all the way around to the Fidelity legal department, or at least that part that over the years has formulated this structure and its documentation. While I mean that sincerely, I mean something more serious as well: somebody over there invested significant resources to get this right, and you see the value of that in this opinion. Investments in ERISA compliance and liability prevention can pay off down the road in spades, and this is a perfect example of it.

A second nice aspect of the opinion is the Court’s nice synthesis of Hecker and Braden, which otherwise can be seen as standing in conflict with each other. However, this leads to the third point, which is that the opinion reasonably and quite intelligently explains that the allegations concerning the mix of investments are not enough to show a breach, even though some of the fund choices were of the retail class in circumstances in which one can assume the sponsor had sufficient negotiating power to avoid that class of investments. As I discussed in this article here, one of the wrong lessons many people took from the District Court opinion in Tibble, which followed a trial of an excessive fee case, was the idea that having retail share classes as investment vehicles is a per se problem and needs to be avoided. That, however, was not really the case in that litigation; what was the problem there was not the use of the retail share classes, but the manner in which they ended up in the investment mix. The Third Circuit’s opinion is essentially driven by the absence of allegations that would match the evidence in Tibble showing that there were errors by the fiduciaries that caused the plan to unnecessarily and improperly carry retail share class investments. Rather, the Third Circuit’s opinion simply rejects the idea that the inclusion of retail share classes alone shows, without more, flaws in fiduciary decision making.
 

Summer time and the living is easy. Well no, not really – which is fine, because nothing makes a lawyer (at least this lawyer) more nervous than having time on his hands. Time demands have, though, cut down on my posting since the 4th. Still, I have had time over the past few weeks to think a little bit about this educational seminar I spoke at that was hosted by Asset Strategy Consultants on the role of fees and revenue sharing in designing 401k plans. My talk focused on defensive plan building, or defensive lawyering in other words, which I define as the process of building out the investment options in a manner that will reduce the risk of getting sued on the theory that fees and expenses in a plan were excessive, or, if sued, of being found liable.

This particular seminar was very interactive, with a lot of give and take with the audience, which is something I like, not least of all because I inevitably learn something. What did I learn this time around? A few things, but the following stuck with me. First, it is important to remember that there are a lot of plans out there, and many of them are staffed by committed professionals working hard to provide participants with the best plans possible. One can lose sight of this in litigation, or even in reading about the various lawsuits, settlements and judgments involving 401(k) plans, because the contentiousness of those cases, along with the real and often significant breaches of fiduciary duty that occurred in them, can obscure that reality. However, there are many more plans – some of them represented at the seminar – where people are doing the work of really diving into the plan’s investment structure, and making sure it is optimal, from both the perspective of fees and the perspective of returns. As I discussed in my talk, fiduciary prudence requires weighing both of those aspects – as well as a whole host of others – in choosing investment options.

Second, when it comes to fees and expenses in investment options, there is a lot of expertise out there, and there really is no reason not to tackle this issue prospectively. Looking backwards, the issue was not on many sponsors’ front burners, and thus I have little doubt that there may be plans out there that never put resources into controlling fees and expenses. However, at this point in time, there is no reason for any plan sponsor to be ignorant on this issue and of the risk of liability it imposes going forward, and there is more than enough expertise out there that can be brought to bear to address such concerns. I would hope that, down the road, excessive fee and expense cases will eventually go the way of the Pterodactyl, now that plan sponsors have learned to pay attention to this issue and to address it.

Third, while I am not a skeptic of excessive fee claims (the math on the impact on participants of a lack of diligence on this front is undeniable), I am of revenue sharing claims, as a general rule. Unless and until revenue sharing in a particular plan is shown to actually impact the investment choices or returns of the plan participants, it seems to be a “no harm, no foul” type of problem. If, as I discussed at the seminar in response to an excellent question, the participants can get a strong return at low fees while at the same time plan costs are driven down by revenue sharing, I don’t see a basis for finding a fiduciary breach, even if the revenue sharing was not disclosed or poorly disclosed. Obviously, this is a best case scenario, but that is my general view of that subject. I did get a good dose of reality on this issue, though, from the presentation of Mark Griffith of Asset Strategy Consultants, who illustrated the extent to which certain revenue sharing arrangements can, over time, result in too much money being paid for administration, relative to the actual costs; at the same time, Mark did a nice job of emphasizing a fact which often gets overlooked when the lawyers start yelling at each other in court about revenue sharing, which is that the costs of administering a plan are significant and have to be paid for one way or the other, a reality check that should not be overlooked when regulators, courts and lawyers are considering the propriety, or instead lack thereof, of various revenue sharing arrangements.
 

Well, this piece by Alvin Lurie on Amara is about as good as you are going to find, running as it does from the technical aspects of the case to the philosophy of its jurisprudence. I can commend it to you for a few reasons, not the least of which is that it does a wonderful job of actually explaining the case itself, in terms of its genesis, the underlying proceedings, the plan at issue, and the decision of the Supreme Court. It also, though, goes straight to the most important aspect of Amara from the point of view of a practicing lawyer litigating benefit claims, which is the majority opinion’s exposition on how to obtain redress when the problem concerns inaccurate summary plan descriptions. As I discussed in this post here, the majority opinion instructs that a plan participant cannot recover increased benefits beyond what would be available under the plan terms themselves by basing a claim for benefits on the summary; rather, the proper approach is to seek reformation of the plan to provide the amount of benefits indicated by the summary, if different from that provided under the plan terms themselves. To my way of thinking, this is the key practical significance of Amara: it explains how to properly plead a claim seeking to recover the greater benefit amounts set forth in a summary, as compared to that set forth in the plan itself.

My thanks to Paul Secunda and the always vigilant Workplace Prof for highlighting the article.
 

I have blogged many times on the DOL’s progressive or aggressive (the adjective you choose depends on your view of the changes) program to alter the fiduciary landscape of defined contribution plans, by – in general – increasing the flow of information among providers, participants and plan sponsors on the one hand, and on the other hand decreasing loopholes that allow some providers to avoid fiduciary status. This story here gets right at the heart of one proposed regulatory change that would make it easier for providers who offer financial advice and products to be transformed into fiduciaries, by focusing on the key element of the regulatory change that has the effect; as the author explains:

ERISA regulations [currently] allow many investment service providers to escape fiduciary accountability for the advice that they provide to retirement plan sponsors and participants. The problem is that the Employee Retirement Income Security Act of 1974’s definition of “fiduciary” is too narrow and nuanced. In particular, only advice that is both regular and serves as the primary source of decision making gives rise to fiduciary standing. Last October, the Labor Department proposed changing the definition by dropping the “regular” and “primary” requirements so that even one-time or periodic advice that is considered part of the decision-making process by the recipients would make the provider a fiduciary.

I like to think of this change as you make the advice, you own it. As a lawyer, that’s the rule I live by, and frankly I have no choice in the matter, from both the perspective of legal malpractice standards and the profession’s rule of ethics. For me, the fact that outlier lawyers who don’t live up to this will, in my experience, eventually find themselves in trouble, either with judges on their cases, malpractice carriers, or the state bar, means that abiding by this golden rule does not disadvantage me either in the courtroom or in the marketplace for legal services, because it creates what is in general a level playing field: most lawyers abide by this principle, and the ones who don’t will eventually be pushed out of the equation.

To me, for the quality providers of investment advice, this proposed change would do little more than have the same effect. If they are already doing a good job, they should not face any greater barrier to their work simply by this codification of a standard that they are already living up to: if they are doing prudent and informed work already, they have nothing – on a day in day out basis – to fear from being rendered a fiduciary by this change. It is the competitors who are skating by and competing with them by providing a lower quality product who will be at risk, and who will either have to raise their game to the level of the better providers or face the legal exposure that comes from doing shoddy work while operating under the title of fiduciary.
 

I don’t know, maybe I had something rattling around in my brain about statistics in light of the then still pending Wal-Mart case when I wrote my last post, ostensibly about the use (and misuse) of statistics in baseball analysis, and less ostensibly about the use (and misuse) of statistics in litigation. I certainly wasn’t conscious of any concern on my part about the Supreme Court and Wal-Mart when I wrote that post, but the post now seems to have an air of precognition to it, at least in hindsight (one wonders whether it is possible to have precognition in hindsight, given the dictionary definitions of those words, but nonetheless). I particularly wasn’t thinking about Wal-Mart when I wrote that post because, like most casual observers of that case, I had long ago come to think it of as a case about class certification and class action requirements, and not about issues such as the proper role of statistics in litigation.

Regardless, one of the most interesting things right off the bat to me about the Court’s ruling in Wal-Mart is the extent to which its rejection of the statistical evidence at issue mimics the views of statistics in litigation that permeate my post on baseball statistics. As both the Court’s decision and that post suggest, there is no legitimate basis to rely on statistics when they do not, in fact, establish factually a specific point that could not otherwise be proven in a different manner of presenting evidence. This is another way of saying that statistical analysis does not belong in a court case, at any stage, if it does not illuminate – and do so accurately – a point that could not otherwise be shown.
 

I am going to take a flyer, because after all this is my blog, and post a digression that really has nothing to do with the subjects of this blog, other than the fact that it relates to the significance of statistics and their impact on litigation, including financial litigation involving ERISA plans. I have talked before about the extent to which the role of statistics in this area – as in all of litigation, frankly – can quickly move the parties into the netherworld of half-truths, inaccurate modeling, and misleading statistic-based assumptions that spawned the well-worn phrase “lies, damn lies and statistics.” The phrase, for those of you not that familiar with it, basically reflects the idea that statistics, used for evil rather than good, can be used to try to show to be true something that is, in fact, not so, and that absent the cover of statistical analysis and complexity, would be seen quickly as either a lie or a damn lie.

This problem permeates litigation, whenever one moves into areas that require extrapolating from a small set of examples, such as determining damages across an entire class based on the data relevant to a limited number of class members or, in another type of scenario, determining contractual rates of performance by extrapolating from a defendant’s performance in a subset of cases. Cases built around such statistical approaches can run off the tracks, if one side or the other’s statistician applies suspect methodology. Of most fun to me, methodological errors, if the lawyers on the other side are astute enough to recognize them, can invalidate one side’s expert testimony and preclude its submission to a jury.

The extent to which statistics can be used or misused in this type of way to either illuminate or instead obfuscate what would otherwise be discernable to the observer has never been so well-illustrated as it has been in recent years by the explosion in the use of statistical analysis in major league baseball, a point both illustrated by and discussed in this article, from the new, overtly literate sports website Grantland (something I see as an attempt by ESPN to expand its tentacles to swallow up those few of us remaining sports fans who don’t think talking heads on a television screen yelling at each other about sports is all that interesting). Statistical analysis has devoured the front offices of baseball teams, replacing, in many instances, career observers and students of baseball, like a Pat Gillick, with laptop cradling, statistics-obsessed graduates of top-flight universities who, absent this opportunity to use math to grab central roles in baseball front offices, would have taken their math skills to Wall Street, or become well-paid actuaries.

However, what is getting lost in the shuffle here, and perhaps more than that in the smoke, mirrors and obfuscation that statistical analysis, when not properly placed in context, can generate, is that the statistical analysis being provided by the new, younger generation of baseball executives is not a “new” way of looking at baseball at all, but is simply the art of reducing observed reality to data that anyone with an understanding of the math can grasp and apply. What the data and their crunchers are doing is reducing the events that make up baseball games to numbers, so that people without vast experience observing the game and its myriad variations can understand and act on the game’s nuances. These analysts are not, however, doing anything more than illuminating facts that astute observers, after observing thousands of games and the variations inherent in them, have previously mastered based only on decades of watching the game and its possible outcomes in different circumstances, without ever reducing that knowledge to mere numbers and statistical formula. In essence, astute and experienced people who have seen enough baseball can tell you the same thing, and make the same judgment calls about which players are good at what, how to use players, what tactical decisions to make, and what players to sign, without ever needing the crutch of statistical analysis to do so. This, however, takes not just perception – something that not every baseball insider has – but also the decades of experience needed to see enough variation in the game, its players and its outcomes to be able to forecast outcomes. It is neither a coincidence nor an indicia of youthful expertise and comfort with math that the statistical revolution, such that it is, in baseball has resulted in ever younger baseball executives replacing much older, experienced warhorses. Rather, it is because turning the reality of baseball into numbers that can be analyzed independent of actual experience with the sport allows anyone astute enough to manipulate statistics to become an expert of a sort on baseball, without the need to first observe however many tens of thousands of hours of the sport that the old guard, without access to such data, had to see first hand before they could make the same evaluations and reach the same conclusions.

Want proof? You can find it right here in this article on Moneyball on Grantland, with its discussion of fielding being undervalued statistically, and the use of that fact by some teams to improve their ballclubs by focusing their spending on buying fielding. But there is nothing new about the idea that defense wins and that you can win by putting excellent fielders out there; all that is new is the reduction of that maxim to data points. Earl Weaver, whose expertise was developed by a lifetime spent watching baseball games, and who by doing so collected in his head – whether he realized it or not, although I think he did – all of the same data points that the new egghead baseball thinkers collate obsessively and then reduce to formulas on their laptops, always emphasized the importance of defense, yet he retired when most of the current generation of young baseball executives were in elementary school, assuming they were even born yet. Want more? Before the current statistical obsession turned to proving the role and importance of fielding, the baseball stat people were obsessed with demonstrating the lack of importance of bunting, hit and runs, and anything else that gave up outs and at-bats for free, in comparison to the importance of taking advantage of those opportunities at the plate; that whole idea is nothing more than the reduction to numbers of the Earl of Baltimore’s well-known hatred of bunting and the hit and run (something which some observers, incidentally, still think cost his team the 1979 World Series).

The point of this is not to belittle the new generation of baseball experts, who interpret baseball reality by what numbers tell them, but to illustrate a fact which too often gets missed: that statistics in baseball are not a new way of looking at the game, but are instead merely the reduction to numbers of a reality that others were already able to see. It has always troubled me that this simple fact has long been ignored in the glorification of the new baseball statistics, and in the idea that the older generation of baseball experts – people like Jack McKeon who somehow, despite not running SPSS packages for fun at night, still won a championship – suffered from a blind spot and did not know what the numbers showed.

And I suppose if I have to tie it back into the subject of this blog, and to my own professional preoccupations – which include the need to communicate clearly to juries and to understand when expert analysis is only interfering with doing that – I would point out that this is the perfect illustration of exactly how statistics, misused, can misrepresent reality in the courtroom. It is always important to grasp the extent to which statistics are clearly demonstrating a reality that cannot otherwise be seen, and when they are instead simply illustrating what could be seen without statistics and instead with careful observation. If you think about it, under the rules of evidence, statistical evidence doesn’t belong in a case in the latter instance, but can be truly illuminating in the former. The use of statistics in baseball, and how we think of them, is a perfect representation of this distinction.
 

What’s that old saying – your lack of foresight doesn’t make it my emergency, or something to that effect?

I am a little guilty of that here, in my advice to you, at the relative last minute, to hurry up and register for a webinar on the intersection of insurance law, ERISA and fiduciary liability. It is not that last minute, really, in that the webinar isn’t until Thursday, but still, I certainly could have given you more notice.

Either way, I wanted to recommend this upcoming presentation, “ERISA Fiduciaries Under Attack: Key Litigation and Regulatory Developments,” presented by blogger Susan Mangiero and a cast of thousands (well, two actually, but they are good ones), which will cover fiduciary liability issues and the management of those risks through fiduciary liability insurance. As you will no doubt note immediately, the presentation strikes right at the intersection of the two main topics of this blog.

Speaking for myself, I think there is a great deal of misunderstanding out there as to the scope and usefulness of insurance coverage in this area. I don’t think I have previously seen a webinar directly targeting this issue, so I think it’s a good one, and I highly recommend it. You can find out more about it on Susan’s blog, here.
 

Here is a worthwhile, almost Cliffnotes (do they still exist?), guide to the ruling in Amara from the American Lawyer. It continues what is quickly becoming the norm for published pieces discussing the case, which is to present the opinion in an “on the one hand, on the other hand fashion,” by describing it as partly a win for employers, partly a win for employees, and a decision whose real impact and meaning cannot be determined yet. On that last point, I think it is more clear what the decision means long term than various writers are assuming. The opinion firmly directs – whether one calls it a holding or instead dicta is almost irrelevant, since when the majority of the Supreme Court says a case should proceed a particular way, as occurred here, whether that clear direction to the lower courts is actually a holding or just guidance seems to be at most of academic interest – that the proper approach to a case involving a conflict between the language of the SPD and the language of the plan terms is not to treat it as an estoppel question, as the courts have done, but to instead view it as a reformation question, and determine which set of language more accurately fits the intended scope of the plan’s benefits. If you think about it, this more properly and cleanly resolves the question of how to resolve a conflict between the language of the plan and the language of an SPD, as it results in providing the benefits that the plan itself was intended to provide, rather than whatever may be the outcome of a scrivener’s mistake, whether that inaccuracy was buried in the plan (and thus the phrasing of the SPD more accurately reflects the original intent of the plan) or in the SPD itself (in which case the SPD has the language that should be ignored). Moreover, it results in the consistent application of the plan across all plan participants, by enforcing the plan in its proper and intended terms and scope, rather than simply revising it or applying the SPD terms on an ad-hoc basis or case by case basis to suit the circumstances of the particular plan participant who is suing and who may or may not have been prejudiced by the discrepancy. An estoppel theory, and a requirement that a plan participant have been harmed by inconsistent language in the SPD as opposed to the plan terms themselves, almost guarantees that some participants – namely those who relied upon and were prejudiced by differing language in an SPD – will get different and likely greater benefits than those who cannot show this. The reformation approach to reconciling differences between the language of an SPD and the language of a plan is a much cleaner, more consistent and more appropriate way to remedy this type of problem that results in consistent treatment of plan participants in a way that an estoppel theory likely cannot do.