9th Circuit says regulatory safe harbor for employee pension benefit plans is limited

It looks like the NEA suit is dead:


"The “Valuebuilder Plan” could be construed as referring to the individual Valuebuilder annuities offered by Nationwide and Security Benefit. However, these annuities were not established or maintained by either the employees' school district employers or by the NEA. These annuity contracts could not, therefore, be “employee pension benefit plans” covered by ERISA. Insofar as the employees used the term “Valuebuilder Plan” to refer to these individual § 403(b) annuities, they failed to state an ERISA claim. The judgment of the district court had to be affirmed."

In America there are two defined contributions systems - one that is governed by ERISA and one that is not. Those who are in non-ERISA plans are apparently able to get away with just about anything. This needs to change.

Scott Dauenhauer

Can Retirement Plan Fiduciaries Accept Gifts/Perks?

There are some fiduciaries out there who don't have an issue accepting gifts from vendors they do business with or may do business with. The following two articles provide some perspective from a legal basis:

https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B_j6Iy8Ev55_ZWVkNWNlMWUtYzJhNS00ZTVmLWJlM2UtY2I4MWQ0Y2NmYWNk&hl=en

https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B_j6Iy8Ev55_NjhkODQ4OTItZWYxMC00ZTM2LWE5Y2ItNDBmN2ExMWVkNjY2&hl=en

You decide, I think the answer is clear.

Scott Dauenhauer CFP, MSFP, AIF

Marcia Wagner: Plan Sponsor's Duty To Avoid Conflicts of Interest

You'll need to click the above title to be taken to the article by attorney Marcia Wagner (who has a number of great articles). This article speaks mainly to ERISA plans, but all Plan Sponsors should take heed of its contents and follow them.

There are many in this 403(b)/457(b) industry (on the government) side who ignore the existence of ERISA because it doesn't technically apply to them. They don't feel a tinge of guilt when they break nearly every prohibited transaction rule and even find foolish reasons to defend their actions.

There are those in the public arena that take great care to run their plans on a fiduciary basis, unfortunately they are currently in the minority.

My advice if you are reading this article is to keep a copy if you are a plan sponsor or administrator, read it every quarter and distribute it to all that work with you. If you are a participant, print it out and send it to your plan sponsor or administrator - hold them accountable.

We need accountability in this 403(b) world, without it bad things happen to good people. There are some in this industry that profess to be Fiduciaries and then do the exact opposite in private, hoping not to be found out or believing that if they are found out that no one will care. YOU KNOW WHO YOU ARE.

Scott Dauenhauer, CFP, MSFP, AIF

TIAA Issues New IRA Contracts With Lower Guarantee

That free lunch that TIAA was offering...gone, for the most part. Up until October 10th you could open an IRA with TIAA-CREF and if you qualified you could get a 3% minimum crediting rate and guarantee - with full liquidity. Those days are gone (thank you Ben Bernanke). The new minimum rate is somewhere between 1 and 3% - my experience is that it is now 1.25%. It still has full liquidity, so its still a reasonable option, its just not an amazing option (like it was before).

You can bet this move is based upon TIAA belief that interests rates will likely remain low for an extended period of time. I don't like the move, but I understand it. For those of you who have TIAA products with a 3% guarantee, you should be careful when moving money so as not to mess that up.

Below is the press release (which I missed):

The effective date of this change has been updated from October 13 to October 11, 2010.

Beginning October 11, new Investment Solutions IRA contracts which contain TIAA Traditional Annuity will have an adjustable guaranteed crediting rate of 1% to 3%.

The TIAA Traditional Annuity in IRAs pays a guaranteed crediting rate while offering the opportunity for additional interest amounts, as declared by the TIAA Board of Trustees. Additional amounts, when declared, remain in effect for the “declaration year” which begins each March 1.

This change does not affect the minimum crediting rate for other TIAA Traditional retirement products, including Retirement Annuities (RAs), Supplemental Retirement Annuities (SRAs), Group Retirement Annuities (GRAs), or Group Supplemental Retirement Annuities (GSRAs).

This change only affects the TIAA Traditional Annuity in Investment Solutions IRA accounts opened after October 11, 2010. TIAA-CREF IRAs that do not offer the TIAA Traditional Annuity product are unaffected by this change.

The prospective change to the Investment Solutions IRA TIAA Traditional Annuity crediting rate reflects the prevailing low interest rate environment and conforms with state insurance laws, which allow insurers to adapt more quickly to the interest rate environment than in years past. TIAA holds the highest insurer financial strength ratings from all leading independent rating agencies.

Questions & Answers

Will my Investment Solutions IRA contracts be subject to a change in the guaranteed minimum crediting rate?
This change only affects Investment Solutions IRA accounts opened after October 11, 2010. TIAA-CREF IRAs that do not include the TIAA Traditional Annuity are unaffected by this change.

Who is eligible to open a TIAA-CREF Investment Solutions IRA?
The TIAA-CREF Investment Solutions IRA is available to participants and their spouses or partners who work for institutions that are eligible to use TIAA-CREF products for their retirement plans. Please note that TIAA-CREF offers other types of IRAs to the investing public.

How is the minimum crediting rate on the TIAA Traditional Annuity account in the TIAA-CREF Investment Solutions IRA changing?
The minimum crediting rate for the TIAA Traditional Annuity in the TIAA Investment Solutions IRA contracts issued on or after October 11, 2010 will change to a minimum guarantee of between 1 percent and 3 percent, compared with a guarantee of 3 percent for Investment Solutions IRAs opened before that date. These changes, which are in conformance with state insurance laws, reflect the current low interest rate environment. Minimum crediting rates for the TIAA Traditional Annuity in existing IRAs and the TIAA Traditional in other TIAA contracts such as the RA, SRA, GSRA and GRAs are unaffected by this change.

Where can I get more information on IRA products?
TIAA-CREF offers several IRA solutions to meet investors’ needs. For more information, please visit www.tiaa-cref.org/ira or speak with an advisor at 800 842-2776.

What is TIAA’s insurance financial strength rating? What does this mean?
TIAA holds the highest insurer financial strength ratings from:

A.M. Best Company as of 12/2009 — A++
Moody’s as of 7/2010 — Aaa
Fitch Ratings as of 4/2010 — AAA
Standard & Poor (S&P) as of 5/2010 — AAA
These ratings are for TIAA as an insurance company and do not apply to variable annuities, mutual funds or any other product or service not fully backed by the claims-paying ability of TIAA. Ratings are subject to change. There is no guarantee that current ratings will be maintained.

The insurance financial strength ratings are one means of assessing the financial strength of an insurance organization, including the ability of the insurer to meet its obligations. TIAA’s capital and contingency reserves – which determine its claims-paying ability – are among the highest in the company’s history, ending the first quarter of 2010 at $24.1 billion, an increase of $1.3 billion over year-end 2009.

This message is informational only and not intended to solicit any TIAA-CREF product or promote any contract transaction.

Guarantees are based on the claims-paying ability of TIAA.

Annuity products are issued by TIAA (Teachers Insurance and Annuity Association), New York, NY. Brokerage Services are provided by TIAA-CREF Brokerage Services, a division of TIAA-CREF Individual & Institutional Services, LLC, members FINRA and SIPC.

Government DC Plan Disparity

In my last piece I talked about the problems in Government DC plans - see Thrown To The Wolves. This is just a quick update.

In the past few months the Department of Labor's (DOL) Employee Benefits Security Administration (EBSA) has been busy. They have done some excellent work in updating fee disclosures, transparency and fiduciary obligations, specifically they have released the following regulations or proposed rules:

408(b)2 Interim Final Regulations
404(a) Participant Fee Rules
Definition of Fiduciary Proposed Rule

There are substantial changes including increased disclosures, greater transparency and more participant protections and yet, none of these rules apply to Government Defined Contributions plans such as 403(b) and 457(b). Sure, many government employers will adopt some or all of these rules/regs but the majority will not. Why is that one set of employees in America is treated so differently than another set just because their income comes from the Government. Is it ironic that these government plans are not subject to government rules/regulations?

Its time that Government employees receive the same rights and protections that private-sector employees receive in relation to their Defined Contributions plans.

Scott Dauenhauer CFP, MSFP, AIF

Labor Dept. eyes reports of advisers exploiting retirees

If only the Department of Labor had state jurisdiction - you'd see a different Government DC marketplace.

This article details some of the abuses taking place in 401(k) - you can bet if they are taking place in 401(k), its much worse in 403(b) and 457(b).

Scott Dauenhauer CFP, MSFP, AIF

Government Employees: Thrown To The Wolves

Why California Is Wrong To Believe That Our Pension Problems Will Be Solved By A Move To Defined Contribution Plans



If you listen closely to the politics of the day you might hear that many of our budget problems would be solved by a simple switch from Defined Benefit (DB) plans to Defined Contribution (DC) plans. Not true.

The problem isn't with our pension plans, it is with our politicians promising what cannot be delivered. But aside from that it would be irresponsible to move our public employees (even "just" future employees) to DC only plans. Why? Because we would be throwing them to the wolves.

You see, in California and many states around the country public employees do not enjoy the same protections that private employees receive when it comes to Defined Contribution plans (403(b) and 457(b)). Government defined contribution plans are not governed by the same laws, namely ERISA that private plans are. There is no Department of Labor that protects our public employees from the wolves in sheep's clothing that stalk our public employees. EBSA might as well mean Employees Being Sold Adrift (EBSA is a division of the Department of Labor and really stands for Employee Benefit Security Administration).

Yes, there are some fiduciary laws on the books in California and other states across the U.S., but they are rarely enforced. The term Fiduciary is bantered about and there are some revolutionaries who take up its banner, but by and large our public employees are bait when it comes to their DC plan.

The new 408(b)2 rules are great rules; except they don't apply to Government DC plans.

It is so bad that in some places criminal behavior has become the norm. What would ordinarily be punished in the private sector as criminal is rewarded in the public sector, even encouraged. Transparency is the exception, rather than the rule (at least the public sector has one thing in common with the private sector!).

The term Fiduciary is truly the "F" word when it comes to public schools - not because employers don't care, but because it isn't a priority - and why should it be? I'd much rather have my local school district spend their time focusing on education - not figuring out the Alpha, Beta and Sharpe of a certain mutual fund. The issue is not that people don't care, its that it isn't even on the radar. In addition, even if it was on the radar there is no enforcement.

Politicians across the U.S. are campaigning on the issue of over-abundant pensions. Maybe they are right, maybe they are not (full disclosure: my wife if one of those people who works her....uh, well she works really hard every day as a school teacher and thus is a beneficiary of a government pension, so I may be a bit biased)...its up to the voters to decide. What is wrong with the pitch that is being made is that these politicians have absolutely no clue that they are throwing these public employees to the wolves. What is worse is that these public employees have been the prey of the wolves for decades and nobody has done anything about it (save a few good souls at CalSTRS...full disclosure: I have done and hope to continue to do consulting work for them).

Two Americas


For some reason we have divided DC plans into Two Americas - those in the public sector and those in the private sector. Those in the private sector enjoy the protections of ERISA (but please don't get me started on 404(c)); those in the public sector are subject to whatever the state legislature MIGHT have put into place for the state's DB plans (with few exception). Why should public employees not be entitled to the same disclosure rules under 408(b)2 (essentially full transparency of service providers) that the private sector will be entitled to come July of 2011?

Why do we have two systems of regulation for DC plans in the US (forgive me, one system of regulation, another system that is essentially unregulated).

Good people are getting hurt and suffering because of this. Moreover, when corruption occurs (and trust me, it occurs) it is not punished - in fact it is rewarded. It is an injustice that has no protector. When a government employee is sold an investment because the individual selling that investment earns a trip to some exotic locale - that employee should at a minimum be disclosed such facts and in reality the person selling the investment should be punished (It shouldn't be allowed in the first place).

Government employees DESERVE to have their DC plans run by competent Fiduciaries, not people who put their own interest ahead of participants.

Conclusion


I've seen too much to sit back and let the prisoners run the asylum, its time that all Government DC plans were held to a higher standard - a Fiduciary standard. Its time that those who seek to undermine public employees Income Security (hmm..perhaps we should create PERISA - the Public Employees Retirement Income Security Act) are held accountable for their actions and are duly punished, not rewarded. It is time that the Duty of Loyalty that should be owed to our public employees DC plans actually means something.

Many public employers currently do the right thing (I know because I work with them on a daily basis), but too many public employees are in plans that are not in their best interest.

I challenge all that believe in a Fiduciary Standard to join me as I work to create a Fiduciary Standard for all government employees that is actually enforced....in other words, Stay Tuned.

Scott Dauenhauer, CFP, MSFP, AIF

"I Have Not Yet Begun To Fight"

According to Wikipedia:

During his engagement with Serapis, Jones uttered, according to the later recollection of his First Lieutenant, the legendary reply to a quip about surrender from the British captain: "I have not yet begun to fight!"

Spotting a Fake Fiduciary

Recently I've come across numerous situations that really tick me off. When I set out to help change the School Employees 403(b)/457(b) world I knew it would take a long time, real change doesn't happen overnight. Don't get me wrong, we've made a lot of progress, but sometimes it feels like employers are taking one step forward and two steps back. What has recently set me off are insurance agents that masquerade as "Consultants" for 403(b) and 457(b) programs. In most cases the insurance agent has convinced the employer that they are knowledgable and will act as a fiduciary - but in the end they are usually looking for a payday. This is of course my experience and my opinion (If you didn't already know, my first amendment right to criticize has been severely curtailed).

These fake "Consultants" even appear to conduct Request for Proposals processes and many times even invite good providers to compete. However the invitation to the good providers is usually just a farce used to gain credibility - the fix is in from the beginning - the consultant already knows who they are going to choose. The chosen providers typically have a revenue agreement with the Consultant. So - how do you spot one of these Wolves in Sheep's Clothing? Look for the following and ask the questions:

Questions for the Consultant?

Do you have a financial relationship with any of the proposed vendors?

Are you licensed to sell the specific product the vendor is offering and do you plan on receiving commissions or fees or trips for selling that product?

Please disclose all compensation you could potentially receive from each of the potential winning vendors?

Do you require a vendor to "Pay to Play" in order to make the finalist list? In other words, will the winning vendor(s) be required to pay money to the "Consultant" if they win? (Note: This is different than a bidder paying agreed administrative payment to the Plan, which the Plan Sponsor may pay out to compensate a Consultant)

Has the vendor paid for any trips you have taken in the past seven years? This is a no-no.

I could list dozens more questions to ask, but I think you get my drift - a True Fiduciary is someone who always acts in the best interest of the participants - ALWAYS.

A True Fiduciary will not take trips paid for by vendors or potential vendors, those trips will be paid for by the Fiduciary him/herself as a cost of doing business. A True Fiduciary will not enter into undisclosed agreements with vendors to receive commissions (or even disclosed agreements). A True Fiduciary will receive income only from their client, not from a vendor. A True Fiduciary will not utilize his/her position of power to benefit him/herself.

Fake Fiduciaries abound, in fact they are the majority. True Fiduciaries are Independent and will put in writing that they are Fiduciaries. True Fiduciaries will always act in your best interest and will not receive income from any source other than their client. They will disclose their conflicts of interest and try to avoid them whenever possible.

The state of the School Employees 403(b) and 457(b) world has trended toward the Fake Fiduciary, in fact it is dominated by Fake Fiduciaries. I come across them everyday. They are scared to death to have any light shed on them and their practices as they will be exposed for what they are - Self-Interested Fakes. This country is in desperate need of True Fiduciaries...School Employees are in desperate need of True Fiduciaries.

School Employees need to demand accountability and employers should work only with True Fiduciaries.

I am a True Fiduciary, are you?


Scott Dauenhauer CFP, MSFP, AIF

Free Speech Non-Existent in San Diego

More to come, but be careful if you criticize a public figure in San Diego - the First Amendment no longer protects you.

ScottyD

Quoted in Forbes: Teachers Facing New Financial Pains

Quotes:

"They have no faith in the stock market and feel they've been misled that stocks produce a higher return [than bonds] or that they'll be rewarded for stock market risk if they just hold on long enough," he says.

Many school districts are also barred from giving financial advice or restricting vendors selling high-cost annuities from campuses, Dauenhauer said. That makes some teachers easy pickings.

"The insurance agents prey on the teachers fears," he said.

What's to be done? For starters, expect that your 403(b) will be as large a part of your retirement as your pension plan, and invest it accordingly. While some teachers may think that their non-pension retirement savings can be invested more aggressively because there is a backstop, Danhauer argues that teachers may find themselves on the hook for more of their health care costs down the line because of the shaky state of government finances.

"The 403(b) has been thought of as supplemental," he said. "My mission is to convince teachers that it is essential to a healthy retirement."

Scott Dauenhauer CFP, MSFP, AIF

SASH - Bad Choice

Douglas Holt of TDS & The Lotter Group Finds New Broker/Dealer

Looks like Mr. Holt found a home, Lighthouse Capital Corporation.

I don't know much about this company other than they are small, though I did come across some weird connections on google, you can review and decide.

Securities and Exchange Commission v. Diversified Lending Group, Inc., et al., United States District Court for the Central District of California, Civil Action No. 2:09-cv-01533-R-JTL

Lighthouse was mentioned in this Dow Jones article as having some connections to Diversified Lending Group, though it is unclear if there are any regulatory issues stemming from this apparent scam.

This seems to me an interesting place for the Lotter Group and Holt to land (assuming the group went with him). The question becomes whether all that 457 money was bulk transferred from his previous broker/dealer to this new one.

Were the school districts affected notified of this? Seems like pertinent information to me.

Security Benefit - Operator of NEA Valuebuilder - Sold to Guggenheim

Not sure of the implications, but we'll follow.

Scott Dauenhauer CFP, MSFP, AIF

Architect to VALIC

Former IRS official and 403(b) expert Bob Architect has joined VALIC.

In an unrelated story, VALIC is sued in California, click here.

Developing....Architect to VALIC

Press Release to follow.

Former IRS official famous for his leadership and knowledge in 403(b) has joined VALIC.

Scott Dauenhauer

Remember This Story - Puplava and FBC

I am reposting the link to this story mainly because the FBC has decided that two days of deposing me is not enough. They are pissed at my involvement in the story behind the scenes and have chosen to subpoena all sorts of stuff. They even made what could only be taken as a threat to sue me in the last deposition (they meaning Dan Shinoff, the FBC attorney). The FBC is suing the former advisors and those advisors are countersuing the FBC. I am not being sued, just deposed....yet! The price you pay for standing up for the little guy I guess. I wonder how much taxpayer money is being spent on this lawsuit?

Scott Dauenhauer CFP, MSFP, AIF