An investment policy statement (“IPS”) provides a good roadmap to plan fiduciaries on how to meet their plan’s investment goals. The IPS also helps fiduciaries minimize exposure to liability. A well-written IPS should outline the roles and responsibilities of all fiduciaries making plan investment decisions. The IPS should include the investment objectives for the plan, how these objectives will be achieved, types of investment allowed under the plan, and the process for selecting and monitoring these investments. The IPS is also a good place to include a statement that the plan intends to comply with ERISA Section 404(c).
While plans are not
required to have an IPS, it is one of the many documents that the Department of Labor (“DOL”) requests during audits. As a former pension investigator at the DOL, we reviewed the IPS to determine if the fiduciaries have an investment due diligence procedure. Once we determined that the plan does have a process for making investment decisions, the next step was to determine if the fiduciaries are in fact following those procedures. Thus, it is not enough to simply craft a well-written IPS. You must actually follow the IPS in order to get fiduciary protection. Plan fiduciaries can show that they are following the IPS by conducting periodic investment reviews. These can be done quarterly, semi-annually, or annually. Plan fiduciaries should keep meeting notes during the investment review to document what was discussed, any decisions that were made, and how they arrived at these decisions.
Conversely, the fiduciaries’ failure to follow the IPS can be considered imprudent and a violation of the duty to follow documents governing the plan. At least one federal court has found fiduciaries to be in violation of these duties as a result of not following the plan’s IPS. That court was the federal district court of Missouri in Tussey v. ABB, Inc., where the court found that the investment committee failed to follow its own procedures for removing funds and imprudently chose more expensive funds. The court awarded over $35 million in total damages to the plaintiffs. The lesson here is, if you have an IPS, make sure you are following it.
Having and following a written IPS can be very advantageous, especially during volatile markets when participant suits tend to rise. This is because in determining whether a fiduciary violated the duty of prudence, courts focus on the process taken by the fiduciary in arriving at the investment decision, not on the result. Accordingly, if a fiduciary has a well-drafted IPS coupled with investment review meeting notes showing that the fiduciary is following the IPS, the fiduciary should be adequately protected from potential personal liability.
If your plan does not have an Investment Policy Statement and you are interested in adopting one, or you have an Investment Policy Statement but need an investment review, please contact us for assistance.
Founded in the 1950s, Carroll Consultants, Ltd. has experienced professionals with a wealth of knowledge about retirement plans. If you have any questions about this article or our services, please contact Marcie Carroll, at firstname.lastname@example.org, or (610) 225-1210.