This Employer Webinar Series program is presented by Spencer Fane Britt & Browne LLP in conjunction with United Benefit Advisors

Transcription

1 This Employer Webinar Series program is presented by Spencer Fane Britt & Browne LLP in conjunction with United Benefit Advisors This Employer Webinar Series program is presented by Spencer Fane Britt & Browne LLP in conjunction with United Benefit Advisors Kansas City Omaha Overland Park Denver St. Louis Jefferson City

2 Retirement Plan Fee Disclosure Rules: Now What? Greg Ash, Esq. and Chadron Patton, Esq.

3 Presenters Greg Ash Partner Chadron Patton Associate

4 Program Highlights Background Focus on Fee Transparency Fee Disclosure Rules Service provider fee disclosures (disclosure to plan fiduciaries) Participant fee disclosures (disclosure by plan fiduciaries) Fiduciary Compliance Strategies Evaluating service provider disclosures Addressing participant fee disclosure inquiries 4

5 Focus on Fee Transparency Fees charged to/paid by DC plan participants can dramatically affect retirement income: Let s take a quick look at how fees can affect you: Assume that you are an employee with 35 years until retirement and a current 401(k) account balance of $25,000. If returns on investments in your account over the next 35 years average 7 percent and fees and expenses reduce your average return by 0.5 percent, your account balance will grow to $227,000 at retirement, even if there are no further contributions to your account. If fees and expenses are 1.5 percent, however, your account balance will grow to only $163,000. The 1 percent difference in fees and expenses would reduce your account balance at retirement by 28 percent. FAQs on Disclosures to Help Employees Understand Their Retirement Plan Fees, U.S. Dept. of Labor, Employee Benefits Security Administration 5

6 Participants in the Dark Although 401(k) and 403(b) plan fees can be significant, participants and employers often don t know who pays them Participants pay 91% of fees (up from 78% in 2009) Median all-in fee for typical plan was 0.78% in a 2011 ICI survey, or about $248/participant But in a 2011 AARP study: 71% of U.S. employees believed they paid no 401(k) fees 6% were not sure 6

7 Call to Action DOL and media outlets are encouraging 401(k) plan activism You could encourage your employer to shop around for other providers willing to offer the same services, but at a much lower cost. And, just so you know, the law is on your side: plan fiduciaries have an obligation to consider the fees and expenses paid by your plan and to operate the plan in your interest. DOL Fee Disclosure FAQs A July 2012 Consumer Reports article encouraged readers to arm yourself with comparisons and join other plan participants to agitate for change. Fees Skim Big Bucks from 401(k)s, Consumer Reports, July 2012, p. 7 7

8 Fee Litigation 30+ cases pending, challenging DC plan fee practices, beginning in 2006 Legal theory: Excessive and undisclosed fees diminish returns and are unreasonable Plans overpay when fiduciaries don t understand fee structures Service providers are conflicted by revenue sharing 8

9 DOL Fee Initiatives 9

10 401(k) and 403(b) Fees Three general categories: Plan Administration Fees Individual Service Fees Investment Fees 10

11 Plan Administration Fees Recordkeeping Accounting Actuarial Appraisal Consulting Legal Third party administrator Trustee services 11

12 Individual Service Fees Loans Hardship withdrawals QDROs Distributions 12

13 Investment Fees Mutual funds Management fees Sales charges Rule 12b-1 fees Variable annuities Management fees Mortality expense charges Surrender and transfer charges 13

14 Mutual Fund Prospectus Annual fund operating expenses (deducted from fund assets) Class R-1 Class R-2 Class R-3 Class R-4 Class R-5 Management fees 0.27% 0.27% 0.27% 0.27% 0.27% Distribution and/or service (12b-1) fees none Other expenses Total annual fund operating expenses

15 Service Provider Fee Disclosure February 2, 2012 DOL published final regulations under 408(b)(2) of ERISA requiring disclosure of fees by covered service providers July 1, 2012 deadline for covered service providers to provide written disclosures to the responsible plan fiduciary (e.g., plan sponsor) 15

16 408(b)(2) Background Payments to parties-in-interest (from plan assets) are generally prohibited transactions (under 406) Constitutes breach of fiduciary duty 15% excise tax Parties-in-interest include service providers ERISA 408(b)(2) is exception to rule 16

17 ERISA Section 408(b)(2) Statutory exemption from P/T rules for payments (from plan) to service providers, so long as: Services are necessary for establishment or operation of plan The contract/arrangement is reasonable No more than reasonable compensation is paid to service provider 17

18 Reasonable Contract Under the final regulations, a contract is not reasonable unless service provider discloses (in writing, in advance) the services it will provide and the direct and indirect compensation it will receive Failure to disclose = unreasonable contract = prohibited transaction = breach of fiduciary duty 18

19 408(b)(2) Consequences If service provider fails to disclose fees (or if plan pays unreasonable fees): Parties have committed a prohibited transaction under ERISA 406 Plan fiduciary has breached its fiduciary duty may be personally liable for loss Service provider is subject to a 15% excise tax (100% if P/T not corrected) 19

20 Innocent Fiduciary Rule Class exemption covers fiduciary who: Innocently enters into unreasonable arrangement (due to lack of disclosure) Makes formal demand for fee disclosure Notifies DOL if provider does not comply 20

21 Covered Plans ERISA-covered qualified plans both DB and DC plans ERISA-covered 403(b) plans Covered plans do not include: Non-ERISA (govt. or church) plans Section 457(b) plans IRAs, SEPs, or SIMPLE plans Health/welfare plans (at least for now) 21

22 Covered Service Providers Disclosure requirements apply to those who provide covered services to a plan, which include: Services provided as a fiduciary or RIA Recordkeeping and brokerage services Other services if the provider received indirect compensation (i.e., compensation from sources other than the plan or employer) 22

23 Covered Service Providers Investment advisors for plan Recordkeepers Brokers Asset allocation model managers Managed account provider Custom target date/life cycle fund managers Commingled funds/collective trusts NOT most mutual funds 23

24 Covered Arrangements Contract/agreement to perform services for a covered plan Reasonably expects to receive (together with subcontractors and affiliates) at least $1,000 in direct or indirect compensation from the covered plan 24

25 Required Disclosures Description of services to be provided Statement regarding status of covered service providers Description of all direct, indirect, relatedparty, and termination compensation service provider is expected to receive Manner of receipt of compensation (e.g., billed separately or paid directly from plan assets) 25

26 Definition of Services Fiduciary services Any recordkeeping services All services that will be provided in connection with the arrangement (including services provided by an affiliate or subcontractor) 26

27 Direct Compensation Direct Compensation is compensation received directly from the plan Example: TPA charges each participant account $50/year (or 5 basis points) May be expressed as a dollar amount, percentage, formula, per-participant charge, or any other reasonable method 27

28 Indirect Compensation Indirect Compensation is compensation received from any source other than the plan or plan sponsor Example: TPA receives 20 bps revenue sharing from mutual fund company whose fund(s) are investment options under the plan 28

29 What is Revenue Sharing? #1 Direct Fee Payments 29

30 What is Revenue Sharing? #2 Indirect Fee Payments 30

31 Related Party Compensation Must describe compensation paid among related parties (including affiliates and subcontractors) to the covered service provider, if it is either: Set on a transaction basis (e.g., finder s fee or commission); or Charged directly against the covered plan s investments (e.g., Rule 12b-1 fees) 31

32 Termination Compensation Disclosure must describe any compensation that the covered service provider, an affiliate, or a subcontractor reasonably expects to receive in connection with the termination of its contract or arrangement with the covered plan 32

33 Recordkeepers and Brokers Must provide fee information for each designated investment alternative (other than brokerage window) that is made available to plan, including: Expense ratios Transaction fees Any other ongoing charges May use investment provider materials 33

34 Recordkeeping Services Paid Through Revenue Sharing If providing recordkeeping services without explicit compensation, recordkeeper must provide reasonable, good-faith estimate of cost of services including: Explanation of the methodology and assumptions used to prepare the estimate; and Detailed explanation of the recordkeeping services that will be provided to the covered plan 34

35 Format Disclosures must be written, but do not have to be part of services contract Service providers permitted to provide the required disclosures electronically, including by making information available on a secure website, if: Disclosure information on the website is readily accessible to responsible plan fiduciaries; and Responsible plan fiduciaries have clear notification on how to access this information 35

36 Timing Initial disclosure deadline was July 1, 2012 Changes to the following types of information must be disclosed as soon as practicable, but in no case later than 60 days after the covered service provider knows of the change: Services to be provided Status of the covered service provider, an affiliate, or a subcontractor as an ERISA fiduciary or registered investment advisor Compensation to be received Cost of recordkeeping services 36

37 Participant Fee Disclosures General: Plan administrator must disclose plan- and investment-related information to participants Disclosures required On participant s initial eligibility Annual notice of general plan information Quarterly notice of actual fees/expenses 37

38 Covered Plans Applies to all participant-directed individual account plans subject to ERISA (e.g., 401(k), 403(b)) Excludes old money 403(b) contracts (pre-2009) Does not apply to IRAs, IRA annuities, SEPs, or SIMPLEs 38

39 Key Issues for Employers Plan administrator is responsible for compliance Compliance required to obtain 404(c) protection Disclosures not optional, but are required as part of fiduciary duty under ERISA Violations risk fiduciary liability and litigation, not just sanctions and penalties (e.g., investment losses and excessive fees) 39

40 Who is Responsible? ERISA 3(16) plan administrator Often, plan administrator is the employer Plans may contractually delegate this responsibility (e.g., to service provider) Relief for reasonable and good faith reliance on third parties Plan administrator not liable for completeness and accuracy of disclosures made by third parties But no relief from obligation to provide the notice 40

41 Content of Annual Notice Plan-Related Information General operational and identification How to give investment instructions Exercise of voting, tender, similar rights Designated investment alternatives Brokerage windows and self-directed accounts Associated fees and expenses Administrative expenses General explanation of fees for plan-level and individual administrative fees that may be charged (e.g., accounting, legal, QDROs, loans) 41

42 Content of Annual Notice Investment-Related Information Identifying information for investment funds (name, category, internet address for supplemental information) Performance data (1-, 5-, and 10-year returns) Special rules for fixed return funds (e.g., GICs) and employer stock Special rules for target-date funds TBA 42

43 Content of Annual Notice Investment-Related Information Benchmark information Fee and expense information Amount and description Description of limits on purchase, transfer, or withdrawal Total annual operating expenses as a percentage and per $1,000 invested Website information for investment funds Glossary of terms (sample at 43

44 Format of Annual Notice Investment-related information must be presented in chart (or similar) format that facilitates comparison Chart must include: Date compiled Name and address of plan administrator How to obtain additional information DOL has published a model chart 44

45 Model Chart Returns Table 1 Variable Return Investments Name/ Type of Option Equity Funds A Index Fund/ S&P 500 www. website address B Fund/ Large Cap www. website address C Fund/ Int l Stock www. website address Bond Funds D Fund/ Bond Index www. website address Other E Fund/ GICs www. website address F Fund/ Stable Value www. website address Average Annual Total Return as of 12/31/XX 1yr. 5yr. 10yr. Since Inception 1yr. 5yr. 10yr. Since Inception 26.5%.34% -1.03% 9.25% 26.46%.42% -.95% 9.30% Benchmark S&P %.99% N/A 2.26% 27.80% 1.02% N/A 2.77% US Prime Market 750 Index 36.73% 5.26% 2.29% 9.37% 40.40% 5.40% 2.40% 12.09% MSCI EAFE 6.45% 4.43% 6.08% 7.08% 5.93% 4.97% 6.33% 7.01% Barclays Cap. Aggr. Bd..72% 3.36% 3.11% 5.56% 1.8% 3.1% 3.3% 5.75% 3-month US T-Bill Index 4.36% 4.64% 5.07% 3.75% 1.8% 3.1% 3.3% 4.99% 3-month US T-Bill Index 45

46 Model Chart Fees Name / Type of Option Equity Funds A Index Fund/ S&P 500 B Fund/ Large Cap C Fund/ International Stock Bond Funds E Fund/ Bond Index Other F Fund/ GICs G Fund/ Stable Value Generations 2020/ Lifecycle Fund Fixed Return Investments Total Annual Operating Expenses As a % Per $ % $ % $ % $ % $ % $ % $ % $15.00 Table 3 Fees and Expenses Shareholder-Type Fees $20 annual service charge subtracted from investments held in this option if valued at less than $10, % deferred sales charge subtracted from amounts withdrawn within 12 months of purchase. 5.75% sales charge subtracted from amounts invested. N/A 10% charge subtracted from amounts withdrawn within 18 months of initial investment. Amounts withdrawn may not be transferred to a competing option for 90 days after withdrawal. Excessive trading restricts additional purchases (other than contributions and loan repayments) for 85 days. H 200X / GIC N/A 12% charge subtracted from amounts withdrawn before maturity. I LIBOR Plus/ Fixed- Type Invest Account N/A 5% contingent deferred sales charge subtracted from amounts withdrawn; charge reduced by 1% on 12-month anniversary of each investment. 46

47 Content of Quarterly Notice Amount actually charged to participant accounts during prior quarter Plan-level charges Description of services to which charges relate No requirement to unbundle and report amounts included in investment fund operating expenses But, if applicable, explanation that some plan administrative expenses were paid from annual operating expenses of one or more investment funds (i.e., revenue sharing) Individual charges (e.g., for loans, QDROs, distributions, investment advice services) 47

48 To Whom? Annual and Quarterly Notice Any individual who is eligible to participate in plan Participants currently contributing Participants eligible but not contributing Term-vested with accounts Beneficiaries Alternate payees under QDROs 48

49 When? Annual Notice Initial Annual Notice later of: 8/31/2012, or 60 days after 1 st day of 1 st plan year beginning on/after 11/1/2011 Subsequent Annual Notices at least once in any 12-month period New employees on or before first day eligible to participate in plan Updates days before effective date of change 49

50 When? Quarterly Notice Initial Quarterly Notice 45 days after end of calendar quarter in which Initial Annual Notice required For calendar year plans, 11/14/2012 Subsequent Quarterly Notices at least once in any 3-month period 50

51 How? Service providers will take the laboring oar DOL reserved rules on method of distribution Generally: Stand-alone paper forms Quarterly statements SPD (if meet the frequency requirements) Electronic 51

52 Muted Reaction To Disclosures So Far 408(b)(2) Service Provider Disclosures Confusion from employers Fees still unclear What should we do with this information? But, DOL expanding examination and enforcement activities 404a-5 Participant Disclosures Largely a non-event But, first quarterly statements still not out 52

53 Fiduciary Compliance Plan 408(b)(2) Service Provider Disclosures Don t just file them away! Make sure you have written agreements with all service providers Fiduciary duty to assess reasonableness of arrangement, and thus entitlement to prohibited transaction exemption Minutes of fiduciary committee meeting should reflect compliance process 53

54 408(b)(2) Disclosure Checklist 54

55 Fiduciary Compliance Plan 404a-5 Participant Disclosures Make sure service providers will distribute the notices (Annual and Quarterly) Insist on contractual delegation of responsibility to service provider Review and understand the fee chart Prepare for questions from participants Decide who will answer questions (e.g., employer, service provider) Consider creating a Q&A template to keep answers consistent Create a complaint log and have fiduciaries review it 55

56 Fiduciary Compliance Plan 404a-5 Participant Disclosures Be prepared for tough questions: Why didn t you tell me about these fees before? What do these fees pay for? My neighbor pays less than $5 for every $1,000 invested. Why are we paying twice that? If I use a fund with a higher price, will I get more value? Did you stop deducting fees when my investments lost value? 56

57 404a-5 Compliance Plan If service provider prepares Annual Notice, review plan-related disclosures for accuracy Consider supplementing disclosures that have already been distributed Benchmark fees Evaluate how fees are allocated Asset-based? Break point? Pro rata? Per capita? Compare fund benchmarks in disclosure with those in IPS Communicate value of plan before disclosures are made 57

58 Q & A 58

59 Thank You! Greg Ash Partner Chadron Patton Associate

60 This Employer Webinar Series program is presented by Spencer Fane Britt & Browne LLP in conjunction with United Benefit Advisors Kansas City Omaha Overland Park Denver St. Louis Jefferson City