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Date: April 19, 2006
Memorandum For: Virginia C. Smith
Director of Enforcement, Regional Directors
From: Robert J. Doyle
Director of Regulations and Interpretations
Subject: The Distribution To Plans Of Settlement
Proceeds Relating To Late Trading And Market-Timing
What are the duties and responsibilities under ERISA of independent
distribution consultants (IDCs), plan service-providers and fiduciaries
with respect to the allocation and distribution of mutual fund settlement
proceeds to plans and plan participants?
Pursuant to Orders entered by the Securities and Exchange Commission
(SEC) in several SEC enforcement matters alleging late trading and market
timing activities, SEC distribution funds have been created for the
purpose of making distributions to investors who suffered losses as a
result of the conduct alleged in the matters. For each relevant mutual
fund or series of funds, an independent distribution consultant (IDC) has
been or will be appointed pursuant to SEC Orders to establish a plan to
distribute the monies from the settlement fund to appropriate fund
shareholders, subject to the SEC’s approval.
A number of ERISA-covered plans will be entitled to settlement proceeds
by virtue of their mutual fund investments. In some cases, plans will be
the shareholder of record and receive their settlement distribution
directly from the settlement fund. In other cases, an intermediary, e.g.,
a broker-dealer, underwriter, and/or record-keeper, will be the
shareholder of record and plans, as well as non-plan investors, will
receive their settlement distribution based on their interest in an “omnibus
account” operated by the intermediary. When an intermediary is involved,
we understand that distribution plans may provide an intermediary with the
option of either receiving the settlement proceeds in a lump sum and
making the requisite distribution of proceeds to the individual investors
in its omnibus account or providing the IDC the necessary client and
transaction records, based on which the IDC will make distributions to the
individual investors. In other instances, we understand that distribution
plans will provide that the IDC will allocate and distribute settlement
proceeds directly to all beneficial shareholders, including plans.
Under certain settlement agreements, mutual fund companies or settling
parties may agree to pay the costs associated with allocations and
distributions made by the IDCs with respect to omnibus account clients of
intermediaries. However, in most instances it is anticipated that
settlements will not provide for the costs associated with allocations
among plans or, at the plan level, among plan participants and
beneficiaries.
A number of issues have been raised by IDCs, intermediaries, plan
sponsors, plan-level fiduciaries, and others regarding the application of
ERISA’s fiduciary responsibility rules to the distribution and
allocation of these settlement proceeds. Among the issues raised are
questions about whether and/or when settlement proceeds will become “plan
assets” under ERISA and when an intermediary or other plan
service-provider may become a “fiduciary” by virtue of its receipt and
investment of such proceeds. Other issues concern the duties of a plan
fiduciary with respect to the allocation of such proceeds among plans and
participants and beneficiaries.
This bulletin provides general guidance to EBSA regional offices
regarding the Department’s views on the application of ERISA’s
fiduciary rules to parties involved in the distribution and allocation of
mutual fund settlement proceeds to employee benefit plans and among the
participants and beneficiaries of such plans.
Independent Distribution Consultants (IDCs) – Allocation among
shareholders
In light of the fact that some ERISA-covered employee benefit plans, as
investors in the relevant mutual funds, will be entitled to a portion of
the mutual fund settlement proceeds, questions have been raised as to
whether an IDC, in developing and implementing a distribution plan, is
subject to ERISA’s fiduciary rules. It is the view of the Department
that the development and implementation of settlement fund distribution
plans will not, in and of itself, cause an IDC to become a fiduciary under
ERISA.
Section 3(21) of ERISA defines a fiduciary as one who has or exercises
discretionary authority or control in the administration or management of
an employee benefit plan or exercises any authority or control respecting
management or disposition of its assets. In determining whether particular
funds constitute plan assets, the Department has issued regulations
describing what constitutes plan assets with respect to a plan’s
investment in other entities and with respect to participant
contributions. See 29 C.F.R. § § 2510.3-101 and 2510.3-102. The
Department also has indicated that the assets of an employee benefit plan
generally are to be identified in other situations on the basis of “ordinary
notions of property rights.”(1)
As discussed above, IDCs are appointed pursuant to SEC Orders to
establish a plan to distribute the monies from the settlement fund to
affected shareholders, and prior to implementation, distribution plans
must be approved by the SEC. The IDC, in this capacity, has not been
engaged to act on behalf of an employee benefit plan or plans and is not
an agent of the plans. Moreover, we have been informed by the SEC that no
mutual fund investor, including employee benefit plan investors, has an
interest in or claims against settlement fund proceeds prior to their
distribution to the affected shareholders.(2) For these reasons, in our view, under the regulations and applying ordinary notions of property rights,
settlement fund proceeds, in whole or in part, would not constitute plan
assets prior to their distribution by an IDC to affected plan shareholders
or intermediaries acting on their behalf. Accordingly, an IDC, in
developing and implementing a distribution plan, would not be exercising
any authority or control in the administration or management of an
employee benefit plan or its assets. Therefore, the development and
implementation of settlement fund distribution plans will not, in and of
itself, cause an IDC to become a fiduciary under ERISA.
This conclusion would not be affected by the fact that the IDC, as part
of its distribution plan, applied a de minimis threshold for determining
which shareholders, including plans, received distributions, or imposed
conditions on the receipt of a distribution, such as conditioning receipt
on the use of a particular allocation methodology at the participant-level(3)
or furnishing a report to the IDC on how the distributed funds were
allocated among participants.
Intermediaries – Allocation among omnibus account clients
Unlike IDCs acting under the auspices of the SEC, intermediaries, in
receiving settlement fund proceeds, will be acting on behalf of their
omnibus account clients, including employee benefit plan clients.(4) The
omnibus account clients, therefore, will have a beneficial interest in the
settlement fund proceeds received by the intermediary, without regard to
whether determinations have been made as to the specific entitlement of
each omnibus account client. Accordingly, applying ordinary notions of
property rights, settlement fund proceeds received by intermediaries on
behalf of employee benefit plan clients will constitute plan assets and,
as such, will be required to be held in trust and managed in accordance
with the fiduciary responsibility provisions of Part 4 of Title I of ERISA.(5)
Without regard to whether an intermediary was a fiduciary with respect
to an employee benefit plan prior to receiving a distribution of
settlement proceeds, an intermediary receiving proceeds on behalf of an
employee benefit plan would, in the view of the Department, be assuming
fiduciary responsibilities upon receipt of such proceeds as a result of
having discretionary authority or control respecting administration or
management of an ERISA plan or exercising any authority or control
respecting management or disposition of plan assets. The Department notes
that the decision by an intermediary, who is not otherwise a fiduciary, to
decline to receive a settlement fund distribution on behalf of its omnibus
account clients would not, in and of itself, be viewed as a fiduciary
decision. The intermediary’s decision or related actions, however, may
nonetheless give rise to fiduciary liability if such actions adversely
affect the plan’s right to receive proceeds in accordance with the IDC’s
plan of distribution.(6)
As noted above, an intermediary in receipt of settlement fund proceeds
will be required to hold the proceeds in trust and manage those proceeds in
accordance with the fiduciary responsibility provisions of Part 4 of Title
I. Among other things, an intermediary in discharging its responsibilities
to act prudently and solely in the interest of plan participants
and beneficiaries, in accordance with section 404(a) of ERISA, may have to
invest the proceeds pending the development and/or implementation of a
plan for distributing the proceeds to individual omnibus account clients.
In such instances, the intermediary may also be responsible for developing
and/or implementing a plan for allocating settlement proceeds among
individual omnibus account clients.
If an IDC, as part of its distribution plan approved by the SEC, makes
available to an intermediary or requires, as a condition to the
distribution, that the intermediary utilize a particular methodology for
allocating settlement fund proceeds among individual omnibus account
clients, the Department will, as an enforcement matter, view the
application of such methodology to the allocation of settlement fund
proceeds among individual omnibus account clients as satisfying the
requirements of section 404(a) with respect to the methodology for
allocating assets to employee benefit plans. We note that while the use of
a particular allocation methodology may be considered prudent, fiduciaries
also need to ensure that implementation of the methodology (e.g., making
allocations and distributions in accordance with such methodology) is
carried out in a prudent manner.
In some instances, the intermediary will be responsible both for
developing and implementing the plan for allocating proceeds among its
omnibus account clients. As fiduciaries, intermediaries must be prudent in
the selection of the method of allocating the proceeds among its clients
in an omnibus account, including plans. Prudence in such instances would,
at a minimum, require a process by which the fiduciary chooses a
methodology where the proceeds of the settlement would be allocated, where
possible, to the affected clients in relation to the impact the late
trading and market timing activities may have had on the particular plan.
However, prudence would also require a process by which the fiduciary
weighs the costs and ultimate benefit to the clients associated with
achieving that goal. For example, there may be instances where the cost of
allocating an amount to a particular plan may exceed the projected amount
of the proceeds with respect to which the plan might be entitled under a
prudent methodology. In such instances (i.e., where the cost to the plan
is projected to exceed the benefit to the plan), an allocation plan would
not be considered imprudent merely because it included an objective
formula pursuant to which amounts otherwise allocable to a plan are
forfeited and reallocated among other omnibus account clients, provided
that any such formula applies to all omnibus account clients, not just
employee benefit plans, and does not permit the exercise of discretion by
the intermediary.
Further, it is our view that an allocation plan would not fail to be
“solely in the interest of participants,” for purposes of section
404(a)(1), merely because the allocation methodology does not result in
an exact reflection of transactional activity of the clients, provided
such method is reasonable, fair and objective. For example, if a fiduciary
determines that it would be more cost-effective to do so, it may allocate
the proceeds among clients in an omnibus account according to the average
share or dollar balance of the clients’ investment in the mutual fund
during the relevant period.
In some instances, the services rendered by intermediaries in
connection with the receipt, allocation and/or distribution of settlement
fund proceeds may involve services or compensation not contemplated in the
service provider agreement between the employee benefit plan(s) and the
intermediary. While an intermediary may charge plans for any direct
expenses incurred in connection with receipt, allocation and/or
distribution of settlement fund proceeds, an intermediary, as a plan
fiduciary, cannot compensate itself from plan assets beyond direct
expenses without violating the prohibited transaction rule of section 406
of ERISA.(7)
If the receipt, allocation and/or distribution services of the
intermediary, and compensation for such services, are carried out in
accordance with the directions and approval of appropriate plan
fiduciaries, the intermediary may be able to avoid fiduciary status and
issues relating to self-dealing under ERISA. However, determinations as to
whether approval by a plan fiduciary has occurred would be factual in
nature and would involve considerations such as language in relevant
service contracts or whether the intermediary has disclosed to its
employee benefit plan clients sufficient information concerning its
proposed administration of the settlement proceeds so that the plan client
reasonably can approve the arrangement based upon its understanding of the
arrangement and related expenses.(8)
In some instances, an intermediary may receive settlement proceeds with
respect to plans that have, since the event leading to the settlement,
hired a new record keeper or intermediary for investments made by the
plan. In such instances, the intermediary in receipt of the proceeds would
still be considered a fiduciary with respect to plan assets in its
possession and would be expected to transfer the assets to the plan’s
new record keeper or to an appropriate fiduciary of the plan.
An intermediary may also receive proceeds on behalf of plans that have
terminated. In such instances, an intermediary should make reasonable
efforts to deliver such assets to a responsible plan fiduciary (most
likely, the plan sponsor) for distribution to plan participants or other
appropriate disposition. If the intermediary is unable to locate a
responsible plan fiduciary after a reasonable and diligent search, the
intermediary may reallocate such proceeds among its other clients. Under
no circumstances may an intermediary retain such assets for its own use.
Plan Fiduciary – Allocation among participants and beneficiaries
The following discussion focuses on the obligations of the plan
fiduciary in allocating settlement fund proceeds among the plan’s
participants and beneficiaries. For purposes of this discussion, the
fiduciary might be the plan sponsor, intermediary or other person charged
with allocating the proceeds among participants and beneficiaries.
Similar to the allocation of settlement fund proceeds among plans, if
an IDC, as part of its distribution plan approved by the SEC, requires, as
a condition to the distribution, that the fiduciary utilize a particular
methodology for allocating settlement fund proceeds among plan
participants and beneficiaries, the Department will, as an enforcement
matter, view the application of such methodology to the allocation of
proceeds among participants and beneficiaries as satisfying the
requirements of section 404(a) with respect to the methodology for
allocating assets to participants and beneficiaries.
If an IDC’s distribution plan provides, but does not require the use
of, a methodology for allocating proceeds among plan participants and
beneficiaries, the Department also will, as an enforcement matter, view
the use of such methodology as satisfying the requirements of section
404(a)(1)(A) and (B) of ERISA with respect to a methodology for allocating
assets to participants and beneficiaries. As noted above, while the use of
a particular allocation methodology may be treated as prudent, fiduciaries
also need to ensure that implementation of the IDC allocation methodology
(e.g., making allocations to participants and beneficiaries in accordance
with the methodology) is carried out in a prudent manner.
In the absence of guidance in the IDC’s distribution plan with
respect to allocations to a plan’s participants and beneficiaries,
fiduciaries must select a method or methods for allocating proceeds. In
this regard, a plan fiduciary must be prudent in the selection of a method
of allocating settlement proceeds among plan participants. Prudence in
such instances, at a minimum, would require a process by which the
fiduciary chooses a methodology where the proceeds of the settlement would
be allocated, where possible, to the affected participants in relation to
the impact the market timing and late trading activities may have had on
the particular account. However, prudence would also require a process by
which the fiduciary weighs the costs to the plan or the participant
accounts and ultimate benefit to the plan or the participants associated
with achieving that goal.
In addition, a fiduciary’s decision must satisfy the “solely in the
interest of participants” standard of section 404(a)(1) of ERISA. In
this regard, a method of allocation would not fail to be “solely in the
interest of participants” merely because the selected method may be seen
as disadvantaging some affected participants or groups of participants. In
deciding on an allocation method, the plan fiduciary may properly weigh
the competing interests of various participants or classes of plan
participants (e.g., affected versus current participants) and the effects
of the allocation method on those participants provided a rational basis
exists for the selected method and such method is reasonable, fair and
objective. For example, if a fiduciary determines that plan records are
insufficient to reasonably determine the extent to which participants
invested in mutual funds during the relevant period should be compensated,
the fiduciary may properly decide to allocate the proceeds to current
participants invested in the mutual fund based upon a reasonable, fair and
objective allocation method. Similarly, if a plan fiduciary determines
that the cost to allocate the proceeds among participants whose accounts
were invested in the mutual fund during the entirety of the relevant
period approximates the amount of the proceeds, the fiduciary may properly
decide to allocate the proceeds to current participants invested in the
mutual fund based upon a reasonable, fair and objective allocation method.
As plan assets, the proceeds of the settlement may not be used to
benefit employers, fiduciaries or other parties in interest with respect
to the plan. Sections 403(c) and 406 of ERISA. Such proceeds should not be
used to offset an employer’s future contributions to the plan, unless
such use is permissible under the terms of the plan and would not violate
applicable provisions of the Internal Revenue Code (e.g., such as when
amounts involved would be considered “forfeitures” under the terms of
the plan). However, we believe that a plan fiduciary, consistent with its
obligations under sections 404 and 406,(9) may reasonably conclude that
certain participant-level allocations that are not “cost-effective” (e.g., allocations to participant accounts of
de minimis amounts) may
instead be used for other permissible plan purposes, such as the payment
of reasonable expenses of administering the plan.
It is the view of the Department that compliance with ERISA’s
fiduciary rules generally will require that a fiduciary accept a
distribution of settlement proceeds. The Department recognizes, however,
that in rare instances the cost attendant to the receipt and distribution
of such proceeds may exceed the value of such proceeds to the plan’s
participants. In such instances, and provided that there is no other
permissible use for such proceeds by the plan (e.g., payment of plan
administrative expenses), it might be appropriate for a plan fiduciary to
not accept the settlement distribution.
SEC settlement fund proceeds resulting from market timing and late
trading activities will not be considered “plan assets” until
distributed from the settlement fund. A party will be a fiduciary to the
extent it exercises any authority or control over such plan assets
following distribution by an IDC.
Settlement fund proceeds will upon distribution to a plan or an
intermediary constitute plan assets and, therefore, will be required to be
held in trust and managed in accordance with ERISA’s fiduciary
responsibility rules. In general, as an enforcement matter, plan
fiduciaries and intermediaries will be considered to satisfy their
fiduciary duty to prudently select a method for allocating settlement
proceeds if they utilize an allocation methodology provided or required by
an IDC in a distribution plan approved by the SEC.
While plan fiduciaries generally have flexibility in designing a
methodology for allocating settlement fund proceeds among the plan’s
participants and beneficiaries, plan fiduciaries must ensure that the
selected methodology does not otherwise violate the prudence and “solely
in the interest” requirements of section 404(a).
Finally, plan fiduciaries should document appropriately the plan’s
receipt and use of such settlement proceeds and work closely with their
record-keepers and other service-providers in completing the process.
Questions concerning the information contained in this Bulletin may be
directed to the Division of Fiduciary Interpretations, Office of
Regulations and Interpretations, 202.693.8510.
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See Advisory Opinion 2005-08A (May 11, 2005) and Advisory Opinion 92-24A (November 11, 1992).
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See generally 17 C.F.R. § 201.1100,
et. seq. (SEC Rules on Fair Fund
and Disgorgement Plans).
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Among other things, an allocation methodology might include the use of
a particular algorithm or a restriction on the depositing of proceeds in
the forfeiture account of a plan.
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Some IDC plans may include ERISA plans within the definition of “intermediaries.”
This discussion of intermediaries is intended to include only those
intermediaries that are not ERISA plans. Where ERISA plans are themselves
shareholders of record, the fiduciaries of such plans are generally acting
in a fiduciary capacity with respect to the settlements.
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For example, any deposit of proceeds in funds managed by an
intermediary or affiliate would be a transaction prohibited by section 406
of ERISA unless a relevant statutory or administrative exemption applies.
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For example, if an intermediary elects not to receive settlement fund
proceeds on behalf of its employee benefit plan clients and also refuses
to provide client records and other information necessary for an IDC to
make the required distributions, the intermediary would be considered to
be effectively exercising discretion or control over plan assets and,
thereby, subject to ERISA’s fiduciary standards because its actions will
have prevented the plan from receiving a share of the settlement.
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Advisory Opinion Nos. 2001-10A (December 14, 2001), 93-06A (March 11,
1993).
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See Field Assistance Bulletin 2002-3 (November 5, 2002).
See also Advisory Opinion
2001-02A (February 15, 2001). In this advisory opinion involving
demutualization proceeds distribution, Prudential provided the
policyholder advance notice of the allocation options and a reasonable
period of time (here at least 60 days) to select an option. As long as the
plan fiduciary actually chose the default allocation, its failure
affirmatively to communicate that decision to Prudential did not cause
Prudential to become a fiduciary by implementing that option.
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A violation of section 406 would arise, for example, if the plan
document provides that the employer would pay plan expenses.
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