I have noted two things – well, many things, only two of which are relevant to this post – in the past, one the line that Marx was wrong about a lot of things, but he was right that everything is economics, and the second that we are beginning to see an incremental evolution in the law of ERISA to account for the reality that pensions – predominant at the time of many of the earlier, key court rulings on ERISA – have been supplanted by defined contribution plans. We saw the latter, for instance, in dramatic fashion in the Supreme Court’s ruling in LaRue, with the justices’ discussion of how rules applicable to pensions may not be equally applicable to 401(k) plans. The two ideas – that everything is at base driven by economic reality and the evolution of ERISA law – are linked, in a way driven home by this column in the Washington Post yesterday arguing for a new retirement structure based on the belief that the defined contribution approach simply is not going to work for most employees. The author noted “that when ERISA went on the books in 1974, employers were contributing 89 percent of the funds in pension plans, but by 2000, the employers’ share of contributions had dropped to 49 percent.” With that change, as I have argued before, we are going to see a real shift in court rulings on ERISA as applied to defined contribution plans, with rulings providing more protection – or at least more recourse – to plan participants when the conduct of plan fiduciaries, particularly in the realm of investment choices, is challenged. When ERISA was only concerned with a world in which almost all retirement benefits were in the form of a pension, investment mistakes were, speaking generally and in sweepingly broad terms, the problem of the sponsor, as the employee was still promised his or her benefits; defined contribution plans invert this paradigm, making investment mistakes by fiduciaries the employees’ problem, and the law of ERISA will continue to shift to give those employees more redress than they have traditionally had in that situation under ERISA.

Two of my favorite bloggers ended up at the same place on a topic of interest over the past week, although from different directions and apparently unwittingly. The WorkPlace Prof posted last week on the idea being floated in a number of state legislatures that the states or their pension plans manage private sector 401(k) (or equivalent) plans and funds, and noted that this simply didn’t sound like a good idea. I nodded my head in agreement at the time, but didn’t think much more of it till today, when Susan Mangiero, who blogs at the cleverly named Pension Risk Matters, posted this piece on financially dubious plans in Massachusetts to increase public sector pension payouts, raising questions about both the financially irresponsible nature of the plan and the “smoke filled room” nature of the decision making. Implicitly, the post leads you to the place where the Workplace Prof’s recent post left off, with the idea that state pension plans aren’t necessarily the place to put private sector 401(k) money.

It seems like these days I have been reading a lot of interesting things on the subjects covered by this blog, many of which I either haven’t been able to pass along because of time constraints, or haven’t passed along because there isn’t enough to say about them to warrant a full blown post. I am going to take a shot at passing these types of interesting little pieces along though, when I can, and I will start today with one, which is likely to be of interest to those of you who read the insurance coverage posts on this blog. Over the years, the question of who, beyond the actual named insured to whom a policy is issued, qualifies as an insured for purposes of a particular policy has consistently appeared on my desk, in a range of guises, under a variety of policies, and with regard to an extensive array of issues that are troubling clients. Here is a nice technical piece on just what are the different types of policy language that are added to policies for the purposes of adding other parties, besides the named insured, to insurance policies as insureds.

And yes, the title of this post is intended to be sung (quite softly in an office environment) to the tune of this extremely annoying ditty.

Maybe, rather than three, there are actually four kinds of lies: lies, damn lies, statistics, and actuarial assumptions relied upon for public pensions. A little harsh, perhaps, but that is certainly what this article in the New York Times today suggests. Less flippantly and more substantively, the article’s discussion of underlying actuarial problems with public pension plans and the corresponding un- or underfunded nature of their liabilities points out in bas-relief something that is often lost when discussions turn to the transformation of retirement funding from a defined benefit world of pensions to the defined contribution world that we currently live in, namely that, although concerns about defined contribution plans as the centerpiece for retirement funding are both numerous and legitimate, defined benefit retirement plans come with their own problems as well. The major difference, though, is that most of those problems in the defined benefit context stay with the provider of the pension, i.e. the prior employer, while most problems with defined contribution plans fall on the pocketbooks of plan participants.

I have written before on a number of occasions about the tripartite relationship that comes into play when an insurer retains defense counsel to represent an insured against a covered lawsuit. In particular, I have discussed my views that the relationship is nowhere near as complicated as many people make it out to be, and that the proper scope of the dealings among all the players in that three sided transaction can be summed up in three handy rules of thumb, which, conveniently enough, you can find right here.

However, what is more complicated and what many people seem to have less understanding of is what are the insured’s rights when the insurer – whether it or instead the insured has selected and is paying the defense lawyers – is limiting its coverage by means of a reservation of rights, which is in essence a letter stating that the insurer will cover only parts, but not all, of any possible loss in a particular case. In many jurisdictions, these circumstance gives rise to a number of substantive powers and subtle leverages on the part of the insured, and likewise to many express duties and subtle pressure points on the part of the insurer. Those, much more than the much simpler dynamics of the tripartite relationship, are worth knowing about, and if you think so too, you may want to attend this teleconference on the subject, scheduled for tomorrow.

Backdating. It’s a scandal. No, not that backdating. I mean when bloggers can’t get to something when it first comes up, and then go back in time to talk about it. That’s what I mean by backdating, and that’s what I am going to do today. Last week, I read, but didn’t have a chance to discuss here, this article from Bloomberg on the State Street Bank subprime losses and potential ERISA related exposure. The article was particularly interesting because it takes a tack someone different than most articles that, like this one, rely on lawyers to evaluate the litigation against State Street arising out of those events; most such articles focus on liability issues, the procedural defenses available to State Street under ERISA, and the defensive position that the company can assert. This article, though, asks and attempts to answer the million dollar – or in this case, more like the billion dollar – question of how much losing these cases will cost State Street. The numbers bandied about by well informed lawyers are staggering, even to the jaded eye.

The article rounds up the usual band of worthies to comment, including the Workplace Prof’s mild mannered alter ego, Paul Secunda, who tacks the eye popping number of “hundreds of millions to the billions” on State Street’s potential liability, and Boston ERISA lawyer Marcia Wagner, who noted that the plan administrators filing suit against State Street may have had no other options but to sue. To quote the article:

Wagner said fund managers hurt by the drop may have an obligation to sue as the existing plaintiffs have. “To the extent plans were misled into purchasing something they were not authorized to purchase, they may have a fiduciary obligation to sue,” said the lawyer, who isn’t representing the investment manager or plaintiffs. “It’s sue or be sued,” she said. “They allowed bad investments, so they should be attempting to make the plans whole.”

This echoes something I said in my last post on the State Street mess, in which I raised concerns about the fact that pension fund managers invested in the State Street products without properly understanding what they were buying. As I suggested in that post, administrators fall down on their own fiduciary obligations in such circumstances. As Wagner’s comment suggests, it may well be that the administrators’ fiduciary duties under those circumstances require them to then try to remedy their initial mistakes by suing to recover the losses, rather than compounding their own fiduciary breaches by simply absorbing the loss; that latter course of action would likely just make the administrators themselves targets for breach of fiduciary duty lawsuits based on their own mistakes in investing in the State Street funds.

On various occasions on this blog I have tried to turn away from its understandable focus on legal issues and onto the real world consequences of the legal rulings that govern ERISA plans. In particular, I have a particular interest, because of the manner in which it impacts my clients, on what practices companies should follow to best protect themselves from potential exposure in the current – and in the ERISA world these days, ever changing – legal environment.

As a result, I took particular interest in this piece out of Legal Times today by an experienced accountant and employee benefit plan auditor on the practical auditing steps that should be taken to ensure proper operation of a 401(k) plan and to limit potential liability in the operation of such a plan. The author’s hook into this topic? The Supreme Court’s decision in LaRue, and the manner in which the opening of liability, at least in theory, by the case is best met by that hoary chestnut, best practices. More than that, though, the author details exactly what, on an operations level, should be part of those best practices.

Here’s a short newspaper story of a local municipal pension plan that suffered a $2.4 million loss to its pension fund, which is only about a $53 million fund, as a result of investments in subprime mortgage backed assets made either by State Street or in State Street funds (the article isn’t clear on the relationship between the pension plan and State Street, the current poster boy for breaching fiduciary duty by subprime investments). As the article points out, the pension plan has retained counsel to pursue State Street over the loss, on the theory that State Street did not adequately disclose the nature of the investments and the risk; this is pretty much par for the course for the various State Street subprime lawsuits being brought by pension and 401(k) plans, which essentially allege that volatile subprime related exposures were not disclosed but were instead contained within investment products sold as safe, conservative bond investments. Although dressed up to suit ERISA and breach of fiduciary duty issues, they can essentially be understand as highly gussied up bait and switch claims, in which retirement plan administrators and fiduciaries allege that they thought they were buying one thing from State Street – a conservative investment vehicle to balance out riskier investment allocations – but instead were sold something else, namely a highly volatile and risky exposure. State Street, of course, as the article reflects, views the cases otherwise, as instances in which the proper disclosure was made, but market downturns harmed the investments.

This whole scenario raises an interesting question, aside from whether it is the plaintiff administrators or instead State Street that is right, because no matter which one is correct in their interpretation of the events at issue, you still end up in the same place, which is that the plans signing off on these investments just plain didn’t know what they were buying. This is certainly the case if, as the plaintiff fund fiduciaries claim, they weren’t told the truth, but it is likely also the case if, as State Street claims, plan sponsors were told the truth and are now simply complaining about market outcomes; if it’s the later case, one can only assume that the sponsors didn’t understand the risk being taken when they signed up for the investment.

And this goes right back to the most important question of all here, which is what were the plan sponsors and fiduciaries doing when they were offering these investment options or making these investments themselves? This scenario speaks of poor investigation and over reliance on the investment provider, namely State Street, and suggests the plans themselves did not have proper processes, including independent administrators with the sophistication to analyze the investment choices and risks, in place for choosing investment options, prior to offering them to plan participants or investing the plans’ funds directly. In this day and age, I think we are moving past the point of debating whether those types of processes are part of the fiduciary obligations of those running retirement plans.

And by the way, for the record, I am not buying the article’s spin that the loss was not that damaging to the pension plan discussed in the article, because it was only about $2.4 million. Against total plan assets of approximately $53 million, and with the taxpayers on the hook to fund the pensions because it is a municipal plan, that’s an important hit, both financially and to the public pocketbook.

Here’s a piece passed along by the Workplace Prof, noting the rise in excessive fee litigation under ERISA. I have noted before that the combination of demographic and economic factors with the ruling in LaRue is going to create more of these types of actions over the years, not less, and thus I share the skepticism the Prof expresses over whether, as a defense lawyer quoted in the piece suggests, these cases don’t pose a significant problem for plan administrators. Moreover, I don’t necessarily buy the sentiment suggested by defense counsel quoted in the article, to the effect that these cases are about a battle of the experts over whether any particular plan’s fees were too high relative to the market or not. I think of them more as due diligence and best practices cases, as really revolving around whether the administrator followed a proper process to pick providers and funds, and to make sure the fees involved remained appropriate as measured against appropriate benchmarks.