October 2013
Authored by Fred Reish and Joan Neri Target date funds are a popular plan investment option. The recent DOL guidance says that plan demographics and other relevant factors should be considered in selecting and monitoring them. A custom target date fund – because it can be tailored for a particular plan – may be the answer. Read more to learn how to select and monitor custom target date funds, the participant disclosure rules that apply and the characteristics they must have to be a qualified default investment alternative.
Custom Target
Date Funds
1 To assist the reader, this paper includes a glossary of capitalized terms. In this paper, we refer to a plan’s responsible Fiduciary to a plan as the Plan Sponsor. In some cases, the Plan Sponsor will act through an officer or partner and in other cases it will appoint a committee.
2 We use “TDF” to refer to all types of target date vehicles, including mutual funds, collective trusts, managed accounts and asset allocation services.
3 The term “ERISA” refers to the Employee Retirement Income Security Act of 1974, as amended.
4 Target Date Retirement Funds – Tips for ERISA Plan Fiduciaries, U.S. Department of Labor Employee Benefits Security Administration, February 2013. http://www.dol.gov/ebsa/newsroom/fsTDF.html
Fred Reish, Esq.
ERISA attorney from the
Drinker Biddle & Reath LLP law firm
Joan Neri, Esq.
ERISA attorney from the
Drinker Biddle & Reath LLP law firm
Executive Summary
Plan Sponsors1 and participants embrace Target Date Funds (TDFs)2 as an investment strategy geared toward a participant’s retirement date and which appears easy to understand and use. Yet, the wide variation in TDF investment strategies, underlying risk exposure and costs present challenges for Plan Sponsors in performing their ERISA3 fiduciary responsibilities. Because of those differences, unwary Plan Sponsors could be exposed to potential liability.
This paper examines ways in which that risk can be minimized through the use of Custom Target Date Funds (Custom TDFs). The related supplements to this paper are as follows:
Guidelines for Prudently Selecting and Monitoring Custom TDFs, which discuss the
fiduciary responsibilities in prudently selecting and monitoring Custom TDFs based upon the Department of Labor’s (DOL) TDF Guidance4.
Qualified Default Investment Alternatives which discuss the rules that apply if a
Custom TDF is selected as a Qualified Default Investment Alternative (QDIA).
Participant Disclosure Rules for Custom TDFs which discuss the participant disclosure
rules that apply to Custom TDFs.
To provide advisors with a practical approach to these rules, this paper is also supplemented by an Advisor Action List for advisors looking to assist Plan Sponsors in fulfilling these
responsibilities and minimize risk, including suggested language to be included in an Investment Policy Statement (IPS). Refer to supplement – Sample Investment Policy Statement
Provisions.
About the Authors
Fred Reish is a partner in the firm’s Employee Benefits Services ERISA Team and a member of the Retirement Income Team. His practice focuses on fiduciary issues, prohibited transactions, tax-qualification and retirement income. Fred has received a number of awards for his contributions to benefits education and communication. He recently was selected by PLANADVISER magazine as one of the five “legends” of the retirement industry and with retirement advisers.
Joan Neri has more than 25 years of experience and is part of the firm’s Employee Benefits Services ERISA Team and a member of the Retirement Income Team. Joan counsels clients on all aspects of ERISA compliance including fiduciary responsibility and plan operational issues. Her practice includes representing registered investment advisers in fulfilling their obligations under ERISA and she is a frequent speaker throughout the country
What is a Custom TDF – Understanding the Dialogue
In general terms, a TDF is a combination of stocks, bonds and other investments that becomes more conservative as a participant ages. In the past, a typical TDF included only proprietary funds of the TDF vendor – sometimes referred to as a Proprietary TDF. Now, Custom TDFs - because they can be tailored for a particular plan - are gaining popularity. As observed by the DOL in the DOL TDF Guidance, “a Custom TDF may offer advantages” to plan participants. A Custom TDF is any TDF that includes non-proprietary funds or some combination of proprietary and non-proprietary funds. For instance, a Custom TDF may use investments that are part of the plan’s line-up of participant investment choices, or may even offer funds that are not included in the plan’s line-up.
Q: A Custom TDF grows more conservative as a participant ages. How does this investment strategy differ from the investment strategy used in a Target Risk Fund?
A: In contrast to a Custom TDF which employs an investment strategy that becomes progressively more conservative as the participant ages, a Target Risk Fund employs a static investment strategy that is designed to expose the participant to a targeted level of risk exposure.
The mix of asset classes and investment styles in a Custom TDF is called Asset Allocation. A Custom TDF may consist of actively managed funds, or passive index funds, or a mix of both and accordingly investment fees among Custom TDFs vary. The Asset Allocation may be aggressive – with a higher allocation to stocks – or conservative – with a higher allocation to bonds. The change in allocations as a participant ages is referred to as the Glide Path. The shape of the Glide Path – based upon how quickly or slowly the allocations change – is referred to as the Slope.
Q: Has the DOL provided guidance on these terms?
A: The DOL TDF Guidance describes the TDF asset allocation and glide path as follows:
A TDF’s initial asset allocation, when the target date is a number of years away, usually consists mostly of stocks or equity investments, which often have greater potential for higher returns but also can be more volatile and carry greater investment risk. As the target retirement date approaches (and often continuing after the target date), the fund’s asset allocation shifts to include a higher proportion of more conservative investments, like bonds and cash instruments, which generally are less volatile and carry less investment risk than stock. The shift in the asset allocation over time is called the TDF’s “glide path.”
A TDF may use one of two glide path approaches – “to retirement” or “through retirement.” The DOL describes these two approaches as follows:
A “to” approach reduces the TDF’s equity exposure over time to its most conservative point at the target date. A “through” approach reduces equity exposure through the target date so it does not reach its most conservative point until years later.
Also, for the first time, the DOL TDF Guidance discusses the advantages of Custom TDFs:
A “custom” TDF may offer advantages to your plan participants by giving you the ability to incorporate the plan’s existing core funds in the TDF. Non-proprietary TDFs could also offer advantages by including component funds that are managed by fund managers other than the TDF provider itself, thus diversifying participants’ exposure to one investment provider.
Guidelines for Prudent Selection and Monitoring
Under ERISA, a Plan Sponsor must act in the best interest of participants and for the exclusive purpose of providing them with benefits.5 This duty is measured under the “prudent man” rule which
requires Plan Sponsors to act prudently in the selection and monitoring of plan investments – including Custom TDFs.
When a Plan Sponsor selects a TDF, it does so as a fiduciary and must engage in a prudent process in the initial selection and the ongoing monitoring. The DOL has recently issued the DOL TDF Guidance (discussed in detail in supplement – Guidelines for Prudently Selecting and Monitoring
Custom TDFs) to help fiduciaries prudently select and monitor TDFs.
The DOL TDF Guidance highlights the importance of evaluating the asset classes and underlying investments held by the TDF, including the principal strategies and risks of those investments. The DOL also points out that, in selecting a TDF, fiduciaries should consider the demographics of their workforce and other relevant factors, such as other plans maintained by the Plan Sponsor, salary levels, turnover rates, contribution rates, withdrawal patterns and so on.6
Advisors can help Plan Sponsors evaluate the needs and characteristics of their workforces—and then develop Custom TDFs that are appropriate for the particular company and its employees. The Custom TDFs can be to retirement or through retirement, aggressive or conservative, and can include other characteristics that are appropriate for the particular plan. In addition, where the investments in the plan’s core line-up are included in the Custom TDF, Plan Sponsors and advisors can be confident that each component investment in the Custom TDF is prudently selected and monitored.
Q. What is the role of a 3(21) advisor in this process?
A: Plan Sponsors may use non-discretionary investment advisors (commonly called 3(21) fiduciaries) for advice about the Custom TDFs, while retaining the ultimate decision-making authority. The use of non-discretionary investment advisors provides evidence that the Plan Sponsor engaged in a prudent process. However, in this case the Plan Sponsor is still the primary investment fiduciary for the Custom TDFs. This means that the Plan Sponsor remains responsible for managing the investment of the Custom TDF.
Q: What is the role of a 3(38) investment manager in this process?
A: If the Plan Sponsor wants additional protection from potential fiduciary liability, it should consider appointing a discretionary investment manager to manage the Custom TDF. These managers are commonly called section 3(38) investment managers. Appointing a 3(38) investment manager insulates the Plan Sponsor from claims that the Custom TDF was not prudently invested. The Plan Sponsor’s responsibility is to select and monitor the 3(38) investment manager. In some cases, the 3(38) investment manager hired by the Plan Sponsor may select an unrelated 3(38) investment manager to manage the Custom TDF. In that case, the 3(38) investment manager that selected the 3(38) manager of the Custom TDF will be responsible for the prudent monitoring and selection of that manager.
5 ERISA Section 404(a)(1)(B). http://www.gpo.gov/fdsys/pkg/USCODE-2011-title29/pdf/USCODE-2011-title29-chap18-subchapI-subtitleB-part4-sec1104.pdf
Custom TDFs as Qualified Default
Investment Alternatives
Just as the Plan Sponsor has a fiduciary obligation to prudently select and monitor the plan investment options made available to participants, the Plan Sponsor has a fiduciary obligation to prudently invest the account of a participant who “defaults” – that is, a participant who fails to direct the investment of his account. To minimize fiduciary liability, the Plan Sponsor can take advantage of the “qualified default investment alternative,” or QDIA safe harbor and designate a Custom TDF as a QDIA. For this safe harbor to apply, the requirements described in supplement – Qualified Default
Investment Alternatives must be satisfied. Once these requirements are met, the Plan Sponsor is not
responsible for whether the Custom TDF is otherwise appropriate for that participant.
IMPORTANT QDIA REQUIREMENT:
One of the most important requirements for a Custom TDF to be a QDIA is that it must be managed by the Plan Sponsor (in its fiduciary capacity) or by a 3(38) investment manager.
Q: What does this mean for advisors?
A: If the Plan Sponsor wants to retain decision-making control of the Custom TDF, then the advisor can serve as a 3(21) non-discretionary advisor and advise the Plan Sponsor as to the management of the Custom TDF.
If the Plan Sponsor wants to be insulated from the claim that the Custom TDF was not prudently invested, then it can hire the advisor to serve as a 3(38) investment manager of the Custom TDF with full investment management authority over the Custom TDF. In that case, the Plan Sponsor’s fiduciary responsibility is to select and monitor the advisor.
Participant Disclosure Rules that Apply to Custom TDFs
The participant disclosure rules that apply to Custom TDFs depend upon how the Custom TDF is structured and presented to participants. A Custom TDF may be structured and presented as:
a Designated Investment Alternative (DIA)
an asset allocation service
a managed account service that qualifies as a Designated Investment Manager (DIM) service Each of these structures is subject to different participant disclosure rules. The most detailed
disclosure applies to DIAs, including detailed information about expense ratios, performance history, portfolio turnover rates and more. These rules are discussed in supplement – Participant Disclosure
Rules for Custom TDFs.
Q: What characteristics must a Custom TDF have to be an asset allocation service?
A: Under the DOL’s Field Assistance Bulletin or FAB7, the Custom TDF must be structured as an asset allocation service for participants that has the following characteristics:
The Custom TDF must be “clearly presented to the participants... as merely a means of allocating account assets among specific [DIAs].”
It cannot use investments that are not included in the plan’s line-up of DIAs.
It cannot be unitized – that is, it cannot be presented as an investment with its own trading value.
There must be a clear explanation to participants about how the asset allocation service functions.
Comment: A fair reading of this DOL guidance suggests that, if a participant decides to use the asset
allocation service, it will be viewed as a participant decision to invest in those proportions in the underlying DIAs. These characteristics indicate that an asset allocation service cannot qualify as a QDIA. A QDIA is managed by the Plan Sponsor or a 3(38) investment manager, while an asset allocation service is not managed. Further, a QDIA results from a participant’s failure to direct the investment of his account, while an asset allocation service is used by the participant to allocate his account assets.
Q: What characteristics must a Custom TDF have to be a Designated Investment Manager (DIM) Service?
A: Under the FAB, an advisor is a DIM if they are an ERISA 3(38) discretionary investment manager who is;
designated by the Plan Sponsor to manage participant plan accounts
employs investment strategies on a participant-by-participant basis (taking into account relevant factors such as age, time horizons, risk tolerance, current investments, sources of income, investment preferences and so on)
Comment: A fair reading of this DOL guidance suggests that to qualify as a DIM, a 3(38) investment
manager would need to manage the Custom TDF for each participant’s account based upon relevant characteristics of that particular participant.
Conclusion
Custom TDFs afford advisors and Plan Sponsors the opportunity to consider the needs and characteristics of the covered workforce and the ability to design investments that are individualized for these purposes. In addition, Custom TDFs can use the plan’s core line-up of designated investments to ensure that the component investments in the Custom TDF are prudent and reasonably priced. Advisors can assist Plan Sponsors in fulfilling their fiduciary responsibilities and minimize risk by following the process set forth within this paper, including the additional information contained within the supplements.
To receive the supplements referenced in this paper or to learn more about actionable next steps, please call your Pioneer Investment Only & Retirement Group Regional Vice President at 888-743-4847.
GLOSSARY OF TERMS
Asset Allocation – The mix of asset classes and investment styles used in a Target Date Fund.
Custom Target Date Fund (Custom TDF) – A Target Date Fund that includes investments that are not proprietary funds of the target
date fund vendor or some combination of proprietary and non-proprietary funds. A Custom Target Date Fund may use investments that are part of the plan’s line-up or may offer funds that are not included in the plan’s line-up.
Designated Investment Alternative (DIA) – An investment made available to participants as an investment choice under the plan.
DIAs are subject to detailed participant disclosure about expense ratios, performance history, portfolio turnover rates and more, as described in supplement – Participant Disclosure Rules for Custom TDFs.
Designated Investment Manager (DIM) – A discretionary investment manager under ERISA Section 3(38) designated by the Plan
Sponsor to manage participant plan accounts and who employs investment strategies on a participant-by-participant basis. A DIM is not a DIA.
DOL TDF Guidance – Target Date Retirement Funds – Tips for ERISA Plan Fiduciaries, U.S. Department of Labor Employee Benefits
Security Administration, February 2013. http://www.dol.gov/ebsa/newsroom/fsTDF.html This Guidance is discussed in detail in sup-plement – Guidelines for Prudently Selecting and Monitoring Custom TDFs.
ERISA – The Employee Retirement Income Security Act of 1974, as amended.
FAB – DOL Field Assistance Bulletin 2012-02R http://www.dol.gov/ebsa/regs/fab2012-2R.html
Fiduciary – For purposes of this paper, Fiduciary means a fiduciary as defined under Section 3(21)(A) of ERISA
http://www.drinkerbiddle.com/files/ftpupload/Section-3(21)(A)-of-ERISA.pdf.
Glide Path – The change in allocations in a Target Date Fund as a participant ages.
Investment Policy Statement (IPS) – A written document setting forth the investment policies and objectives for the plan,
including in the case of a participant-directed plan, the number of general investment options and asset class categories to be offered under the plan.
Plan Sponsor – For purposes of this paper, the Plan Sponsor is a reference to the responsible plan Fiduciary having the authority,
among other things, to designate investment alternatives under the participant-directed plan and to enter into agreements with third parties to assist in these and related duties. In some cases, the Plan Sponsor will act through an officer or partner or in other cases, it will appoint a committee.
Proprietary (or non-Custom) Target Date Fund – A target date fund that consists of the target date fund vendor’s proprietary funds. Qualified Default Investment Alternative (QDIA) – An investment designated by the responsible plan fiduciary for participants who
fail to direct the investment of their plan account and which satisfies the requirements for one of the three investment categories (i.e., age-based model, a risk-based model or a managed account) as described in supplement – Qualified Default Investment
Alternatives.
Slope - The shape of the Glide Path as based upon how quickly or slowly the allocation changes in the Target Date Fund. Target Date Fund (TDF) – A combination of stocks, bonds and other investments that automatically grow more conservative as a
participant ages. As used in this paper, target date fund refers to all types of target date vehicles, including mutual funds, collective trusts, managed accounts and asset allocation services.
The law and Drinker Biddle’s analysis contained in this paper and supplements are general in nature and do not constitute a legal opinion or legal advice that may be relied on by third parties. Readers should consult their own legal counsel for information on how these issues apply to their individual circumstances. Further, the law and analysis in this paper and supplements are current as of October 2013. Changes may have occurred in the law since this paper and supplements were drafted. As a result, readers may want to consult with their legal advisers to determine if there have been any relevant developments since then.
The views expressed within this paper and supplements are those of the authors and not necessarily Pioneer Investments, and are subject to change at any time. Pioneer Investments is not affiliated with fi360® or Drinker Biddle & Reath LLP.
