Chapter 20 Fiduciary Duties and Responsibilities

1. Chapter 20Fiduciary Duties and Responsibilities

2. The scientific advances provided by modern portfolio theory, together with the evolving prudent expert standard, virtually require that fiduciaries base their investment actions on a total portfolio approach. Although the legal establishment has been regrettably slow to provide leadership in this direction, investment managers and other fiduciaries must recognize and apply these theoretical advances, particularly in drafting investment policy statements and considering the asset classes to be included in a potential asset mix. No particular asset or strategy should be per se excluded from consideration. - William G. Droms

3. Outline • Introduction • History • Fiduciary duties • Emerging areas

4. Introduction • A fiduciary is a person or an institution managing money and/or business affairs for another person or institution • E.g., a bank trust department, a private money management firm, a stockbroker, a CPA, an attorney

5. Introduction (cont’d) • If a person has discretion in the management of someone’s funds, he assumes a fiduciary duty • E.g., a stockbroker who merely executes a trade is not acting in a fiduciary capacity

6. History • Introduction • Prudent man rule • The Spitzer case • Prudent expert standard • Uniform Management of Institutional Funds Act • Uniform Prudent Investor Act

7. Introduction • Fiduciary law is a developing field • Legal precedent often evolves slowly • Portfolio managers may get frustrated when financial practice and legal requirements are inconsistent

8. Prudent Man Rule • The prudent man rule is the origin of modern fiduciary duty • Developed in Harvard College v. Amory: • Fiduciaries need to use good judgment and make long-term decisions for other people in a manner consistent with how reasonable people manage their own money • Disapproves of “speculation,” but does not define it

9. Prudent Man Rule (cont’d) • 1889 New York bill limits trust investments to government bonds and mortgage securities unless the trust documents specifically permit other investments • First instance of a legal list • Legal lists were widely accepted until the 1940s, when more flexibility started to be offered

10. Prudent Man Rule (cont’d) • Restatement (Second) on Trusts (1959): • Speculation is the assumption of added risk in hope of higher returns rather than for principal preservation • Appropriate for a man of intelligence • Not appropriate for a trust investment • The Restatement complicated life for investment managers

11. Prudent Man Rule (cont’d) • AMEX standards for speculation: • Speculation for one account may be sound investment in another, due to: • Tax considerations • Age of the beneficiary • Duration of the trust • Economic climate

12. The Spitzer Case • 1973 case Spitzer v. Bank of New York: • Trust guardian Spitzer alleged imprudence on part of the bank in the administration of the trust • Spitzer disputed four security trades resulting in a loss of $238,000 over four years • The aggregate portfolio showed a gain of $1.7 million over the same period

13. The Spitzer Case(cont’d) • Case outcomes: • The mere fact that the portfolio showed a reasonable rate of return is not a defense against imprudence • Would provide manager immunity in an advancing market • Gambling with a client’s account is fundamentally wrong

14. The Spitzer Case(cont’d) • Case outcomes (cont’d): • Each portfolio component must be judged on the extent to which it contributes to the overall portfolio and the resulting likelihood that the portfolio will serve the beneficiary well • Recognizes that securities are normally part of a portfolio • Recognizes that the characteristics of the portfolio have some bearing on whether or not a particular asset is a good portfolio component

15. The Spitzer Case(cont’d) • Case outcomes (cont’d): • Hindsight is an inappropriate perspective from which to judge to prudence of an investment decision • It is important to consider whether there has been a proper diversification of investments • The Spitzer case led to a revision of the prudent man rule

16. Prudent Expert Standard • The prudent expert standard is from Section 404 of the Employee Retirement Income Security Act (ERISA): • Passed because of concerns about private pension plans and potential failure of large firms • Established a national, uniform set of requirement for fiduciary conduct within pension funds

17. Prudent Expert Standard (cont’d) • Section 404: • A pension fiduciary shall discharge his duties with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims

18. Uniform Management of Institutional Funds Act • The Uniform Management of Institutional Funds Act: • Was enacted by The National Conference of Commissioners of Uniform Laws • Recognizes the need for clarity and definitive guidelines in the management of charitable investment funds • E.g., public foundations and endowments

19. Uniform Management of Institutional Funds Act • The Uniform Management of Institutional Funds Act(cont’d): • Eliminates undue concern with individual investment performance • Concentrates on the performance of the aggregate portfolio

20. Uniform Prudent Investor Act • The Uniform Prudent Investor Act: • Was enacted by The National Conference of Commissioners of Uniform Laws • Is subject to state by state adoption • Formally embraces what business schools teach in the classroom • Portfolio managers may handle fiduciary accounts in accordance with current financial theory

22. Fiduciary Duties • ERISA • Care • Loyalty • Prohibited transactions

23. ERISA • ERISA: • Deals with the management of pension funds • Has influence throughout the investment community • Outlines two primary fiduciary duties: • Reasonable care • Undivided loyalty

24. Care • Prudent expert • Diversification rule • Documents rule • Indicia of ownership rule

25. Prudent Expert • The ERISA manager must be familiar with and practice modern investment methods • It is not enough to manage money the way ordinary people do

26. Diversification Rule • The diversification rule requires that pension plans be diversified: • Assets should be selected to reduce the risk of the portfolio • There may be circumstances when diversification is not prudent: • Requires documentation and intentional action

27. Documents Rule • The documents rule: • Requires that the investment manager handle the fund in accordance with the documents that govern the plan • Does not apply if it violates the duties of care of loyalty • May not violate ERISA or state law fiduciary rules

28. Indicia of Ownership Rule • The indicia of ownership rule requires that documents relating to asset ownership must be under the jurisdiction of the U.S. court system • Foreign property falls under foreign jurisprudence

29. Loyalty • Sole interest of beneficiary rule • Exclusive purpose rule

30. Sole Interest of Beneficiary Rule • The sole interest of the beneficiary rule: • Means that the customer’s best interest comes ahead of the best interest of the fiduciary • Requires the fiduciary to defray reasonable administration expenses of administering the plan • Does not require the fiduciary to deal with the broker offering the lowest commission • Does require the fiduciary paying more to obtain some additional value for the higher cost

31. Exclusive Purpose Rule • The exclusive purpose rule: • Requires a fiduciary to do her job for the single task of providing benefits to the beneficiary • Provides that the fund may be used to defray reasonable expenses that the fiduciary incurs in carrying out her duties

32. Prohibited Transactions • Specific transaction restrictions • General transaction restrictions • Fiduciary conduct restrictions • Property restrictions

33. Specific Transaction Restrictions • Specific transaction restrictions: • Preclude a fiduciary from making a trade between the pension plan and a party of interest • A party of interest is a person or organization who has some relationship to the pension plan • Require security transaction to be arms-length trades, free of a conflict of interest

34. General Transaction Restrictions • General transaction restrictions prohibit the transfer of any plan assets to a party of interest • E.g., the pension fund could not sell shares to a beneficiary of the fund

35. Fiduciary Conduct Restrictions • Fiduciary conduct restrictions preclude a fiduciary from using the plan assets for his own benefit • E.g., a fiduciary cannot direct trades to a particular brokerage firm and receive kick-backs

36. Property Restrictions • ERISA limits pension fund investments to “qualifying employer real property” • Property that is leased to the plan sponsor who makes lease payments to the pension fund

37. Emerging Areas • Due diligence • Social investing • Proxy voting • Soft dollars

38. Due Diligence • Fiduciaries need to exercise due diligence in the conduct if their duties • Carefully consider investment decisions • Ensure that the information on which you base your decisions is accurate • Conduct credit checks on employees handling clients’ money • Make a reasonable effort to gather facts and ensure their accuracy

39. Social Investing • The legal status of social investing requirements is cloudy • A fiduciary should always listen to the wishes of the client and seek to satisfy them when prudent to do so

40. Proxy Voting • Definition • Proxy voting and the law • Establishing a proxy voting policy • Mechanics of voting

41. Definition • Shareholders who are unable to attend the annual meeting for any reason have the right of proxy voting • A proxy statement is a legal document allowing the shareholder to cast an absentee ballot

42. Proxy Voting and the Law • A fiduciary does not have the right not to vote • The right to vote is an asset of the organization and the investment manager breeches a fiduciary duty if he fails to exercise it • The fiduciary who fails to vote chooses personal convenience over the interest of the beneficiary

43. www.proxyvote.com

44. Establishing A Proxy Voting Policy • Many money management firms have no clear policy on proxy voting • Obstacles to proxy voting cited by managers: • Lack of a clear policy and support from the management of the investment firm • The perception that many proxies are routing

45. Establishing A Proxy Voting Policy (cont’d) • Obstacles to proxy voting cited by investment managers (cont’d): • Uncertainty about voting responsibilities for publicly managed funds • Overzealous management attempts to influence owners • Increasing international investment • Delegation of voting authority • The proxy distribution system

46. Establishing A Proxy Voting Policy (cont’d) • Common shareholder proposals include: • Cumulative voting • Makes it easier for an outsider to elect someone to the corporate board of directors • Endorsement of the CERES Principles • Protecting the environment • Eliminating staggered terms for directors • Compensation limits for officers • Diversity and hiring practices

47. Establishing A Proxy Voting Policy (cont’d) • Voting proxies in the best interest of the beneficiary is not the same as voting proxies in the best interest of the company • A committee should look at more complicated issues and determine what makes the best sense for the beneficiary • There should be a policy for corresponding with management prior to a decision to vote against their recommendation

48. Mechanics of Voting • Shares can be voted in four ways at an annual meeting: • Attend the meeting and vote in person • Inconvenient • Fill out the paper proxy • Expensive • Vote over the Internet • Vote via a touch-tone telephone

49. Soft Dollars • SEC report • Soft dollars and research • Soft dollars and nonresearch acquisitions • SEC recommendations for soft dollar arrangements

50. SEC Report • The SEC defines soft dollars as • “arrangements under which products or services other than execution of securities transactions are obtained by an adviser from or through a broker-dealer in exchange for the direction by the adviser of client brokerage transactions to the broker-dealer” • The SEC requires investment advisers to disclose soft dollar arrangements to their clients