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The Fiduciary's Default Investment Choice

By Frank Armstrong

Several high-profile class action lawsuits are now winding their way through the federal courts alleging high costs, sustained underperformance, and failure to properly disclose and account for revenue sharing and other “under the table” payments in pension and 401(k) plans. The fiduciaries have only themselves to blame. These issues should never have been on the table.

All relevant fiduciary standards including the 1974 Employee Retirement Income Security Act (“ERISA”), the 1994 Uniform Prudent Investor Act (“UPIA”), the 1997 Uniform Management of Public Employee Retirement Systems Act (“MPERS”) and the 2006 Uniform Prudent Management of Institutional Funds Act, and the American Law Institute's Third Restatement of the Law of Trusts (“Prudent Investor Rule”) have embedded language suggesting that Passive Investment Strategies such as Index Funds, Asset Class Funds, and Exchange Traded Funds (“ETF”) should be the appropriate implementation of a fund's investment policy. Fiduciaries regularly ignore this suggestion at their peril.

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