401(k), Fiduciary

Staying out of trouble as a fiduciary

To avoid fiduciary breach claims due to costs, there are several things an investment committee can do to avoid being dragged into court by their participants. 1) Make certain your investment committee is proactive and members either have the expertise to perform or engage those that do. The reality is all fiduciaries have potential liability for the actions of their co-fiduciaries. Plus committee members are considered ERISA fiduciaries—and as an ERISA fiduciary, the liability is personal and that includes those who have the power to appoint ERISA fiduciaries. 2) Have regular meetings such as quarterly with a prudent process that is structured and includes notes. Minutes provide a sense of the environment at the time decisions were made, the alternatives presented, and the rationale offered for each, as well as what those decisions were. They also can be an invaluable tool in reassessing those decisions at the appropriate time and making adjustments as warranted—properly documented, of course.

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