Plan Governance, Investment and Fiduciary Issues

The Department of Labor (DOL) and an active class-action plaintiffs’ bar are paying close attention to the conduct of plan fiduciaries and the investments made available to plan participants. Among other issues, the DOL is demanding greater transparency with respect to fees paid to various service providers, and is scrutinizing the participation in the decisionmaking process by persons and entities that claim not to be plan fiduciaries. Plan fiduciaries are also under a microscope with respect to their investment choices and decisionmaking processes — and poor choices can often lead to claims of fiduciary liability.

We assist plan sponsors, trustees and investment committees with the development of and adherence to investment policy statements, and regularly provide comprehensive training for plan fiduciaries to help them ensure compliance with relevant laws and regulations. We also review and provide counsel on plan administrative servicing agreements and investment advisor contracts. We assess alternative investment contracts for appropriateness of investment by pension plans, and negotiate side letters with various investment funds, including limited partnerships, hedge funds and collective trusts.

Representative Experience

  • Assisting the U.S. subsidiary of a foreign parent company to draft plan governance procedures, including committee charters delineating specific administrative and investment functions, and providing clear lines of delegation authority and responsibility for all plan administrative and investment matters.
  • Conducting advanced fiduciary training for the investment committee of multibillion-dollar pension and defined contribution plans, including review of recent case law, best practices, and use of fiduciary audits conducted by the Pension Benefit Guaranty Corporation (PBGC) as case study.
  • Assisting in the development of investment policy statements, including language providing guidance on actions expected to be taken when an investment fails to meet established criteria.
  • Preparing a white paper for a large governmental plan addressing and comparing various applicable fiduciary standards (including the Uniform Prudent Investor Act, common law of trusts and the IRS Exclusive Benefit Rule) to the standards set forth in Employee Retirement Income Security Act (ERISA).
  • Reviewing and assisting in the preparation of ERISA Section 408(b) disclosure statements.
  • Performing a comprehensive internal fiduciary audit of plan compliance on behalf of plan administrative committees.
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