Pick a marketing/PR firm that understand what you do

There is a running joke from my wife where she tells me that despite 13 years of marriage, she still doesn’t know what I do. At least, I think it’s a joke.

One of the problems that I had in my career especially when working with the law firm I was at is that people didn’t understand what I do as an ERISA attorney. I’d sit down with the corporate attorneys and try to create some synergies but they didn’t understand the potential liability of a plan sponsor and they had zero interest in sharing my pitch to their clients.

When I started my own practice, I hired a marketing/public relations firms. The guy I hired was and still is a sweet man. But the problem was clear is that he didn’t understand what I did either. It’s easy to explain what a real estate attorney does, ERISA attorney not so much.  He suggested that I network with one his other clients, a plaintiff-side negligence attorney and I told him that there were zero chances for referrals as accident victims aren’t great referral sources for plan sponsors.

I eventually fired him when the marketing didn’t help with results and he suggested that I should take time off for my own practices. Word to the wise, never tell your client to take a vacation.

Thankfully as a plan provider, you have the opportunity to hire a marketing and public relations firm that knows a thing or two about the retirement plan business. If I had to hire a firm these days, I would only hire one that had experience with the retirement plan business because a firm that doesn’t know what you do, can’t have the background and expertise to help you. Luckily, you have people out there like Rebecca Hourihan and Shari Fitts that know the retirement plan business and can help you out in providing marketing support to help you grow your business. Hiring someone that doesn’t know what you do is not money well spent because the help they will offer will be unfocused on what you need to do to connect with plan sponsors.

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Those University Lawsuits are like shooting fish in a barrel

There have been around 20 class action lawsuits filed against universities for high cost 401(k) and 403(b) plans. The lawsuits are like shooting fish in a barrel because when you think about it, low costs and higher education tend to be mutually exclusive. I would assume most private universities don’t have the vigilance that plan sponsors do in the private sector in being concerned with fiduciary duties and monitoring the reasonableness of fees.

Thee private universities also tend to have their plans administered by some of the legacy partners of the non-ERISA 403(b) marketplace where low fees don’t exist.

Private universities are easy picking for the filing of a class action lawsuit, but time will tell whether they’re going to settle or lose at trial.

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Plan Sponsors Need To Vet Any TPA Referral

My latest article on JDSupra.com can be found here.

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The Value and Peril of Flat Fee Billing

I know a thing or two about the virtues of flat fee billing, have done my legal work on the scale while working for a couple of third party administration (TPA) firms. Plan documents, plan amendments, and plan terminations were done for a flat fee that clients knew ahead of time about the true legal cost and not have a sticker shock worry when they got my bill.

That was a lot different when I worked for law firms for about 3 years. They billed by the hour and I think that billing by the hour is the power to destroy. Law firms feel the need to bill by the hour to pay their huge overhead. Since associates and low tier partners are judged by the hours they bill, that leads to unnecessary billing where associates and partners charge for far more work than they actually did. I certainly know that after hiring attorneys to sue a client of mine that skipped out on a $40,000 bill.


I like flat fee billing because it gives clients that certainty about how much their legal cost will be, rather than worried that the bill at the end is multiple times what they thought it would be.

I know many advisory and third party administration (TPA) implementing or exploring flat fee billing, but I think their businesses are different from my law practice in terms of flat fee billing. Advisors and TPAs have different liability concerns than I do, especially with larger plans. I don’t think there is anything wrong with offering flat fee billing, my only concern is that a provider goes in with a low flat fee that hurts their margins and underlying business by implementing a fee that is too low for the services they offered.

Flat fee billing is an attractive sales point, I just think that providers should avoid setting the bar for a flat fee too low

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Advisors can’t care about fiduciary duty and recommend bad TPAs

When the cheaters were caught cheating at a game of blackjack, Sam “Ace” Rothstein wanted to make an example of them at the Tangiers Hotel in Casino. He had the security guards use a hammer on one cheater’s hand and then told the other one: “You can either have the money and the hammer or you can walk out of here. You can’t have both.”

There is so much talk by advisors on how plan sponsors need to be concerned about their fiduciary liability, yet, when it comes to choosing the third party administrator (TPA), there are many advisors who just recommend one that is cheap. They don’t see the value in recommending a TPA that might cost a couple of bucks more but are cheaper in the long run because of the lack of compliance headaches.

I was working with a plan provider who was being told by an advisor that they were more expensive than the other TPA. When I heard of the TPA, I bristled because it’s a low-cost provider who does as bad as a job as one of those large payroll provider TPAs. The biggest threat to a plan sponsor’s liability is compliance errors because they’re easy to create, hard to discover, and expensive to fix. Plans don’t get into trouble with the IRS because the plan doesn’t have an investment policy statement or a small-cap value fund in the lineup. They get in trouble most of the time because something on the administration done was done incorrectly.

So I believe that an advisor who just sees a TPA as a price, rather than a service, is talking out of both sides of their mouth when they caution a plan sponsor about trying to minimize their liability. Friends don’t let friends drink and drive and good 401(k) advisors don’t recommend TPAs just based on price.

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Plan Sponsors Need To Vet Any Potential TPA

My latest article on JDSupra.com can be found here.

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There is no such thing as an Assembly Line Retirement Plan

Henry T. Ford is considered the father or the pioneer of the modern day assembly line of manufacturing.  His development of the Model T and its way of manufacturing is considered one of the great developments in 20th-century capitalism. His assembly line combined the idea of interchangeable parts and was a model of efficiency. His efficiency did have its limitations. In his autobiography, Ford wrote: “Any customer can have a car painted any color that he wants so long as it is black”.

There are many retirement plan providers that have an assembly line approach when it comes to retirement plans. These providers use their own standardized prototype documents and have a consistent plan design structure. Like the color of a Model T, plan sponsors usually using these providers have no choice in plan design and these limitations may cost the plan sponsor money because they are not able to maximize employer contributions through plan designs that may increase contributions to highly compensated employees, which many times are the owners of the plan sponsor.

There can’t be a cookie-cutter approach to retirement plans. Every plan is different. Even plans sponsored by the same employer are different. Every plan has its own set of circumstances as to why they were set up, what the goals were when set up, as well as the demographics of the plan sponsor supporting it. Their vesting schedule, eligibility requirements, and employer contribution should be drafted to the specific needs and demographics of the plan sponsor. Plan documents are legal documents and legal documents have legal consequences. They should not be churned out by someone who is not an ERISA attorney or is not a paralegal with extensive retirement plan drafting background.  Prototype plan documents that have that fill in the blank document look can be a very cost-efficient, but they have their limits and there are very often situations where the plan sponsor’s needs cannot fit within the confines of the plan document’s limited choices.


Retirement plans are not widgets or tubes of toothpaste. Like a suit, they have to be custom made or tailored to meet the specific needs of the plan sponsor. Failure to have the plan fits the needs of a plan sponsor is the same as my 12-year-old son wearing his Size 6 clothes or my clothes.  Plan design and drafting is an essential part of retirement plan administration and should not be discounted.

These plan providers that use that assembly line approach that doesn’t offer new comparability plan design or a variety of choice among plan provisions does a disservice to the plan sponsor. Cost for a plan sponsor in retirement plan administration is a concern, but not the overriding concern. Plan sponsors need providers that can draft and administer the plan so it fits their needs.

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Using A Payroll Provider As Your 401(k) TPA Is An Awful Idea

My latest article for JDSupra.com can be found here.

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I avoid it when it doesn’t look right, you should too

I live in an unincorporated village on the south shore of Nassau County and the elected Board of Education has this problem that doesn’t want to talk about and it’s called nepotism. Three out of the seven members have a child working for the district, all who got jobs while their parents were on the Board including one member where both sons just were hired for the district. They will say there is nothing wrong with nepotism. They’re right in the sense that it’s not illegal as long as the parent board member abstains, but it gives the impression that something underhanded is being done. Impressions matter because it leads to negative inferences and assumptions.

A few weeks back, a plan sponsor client asked me about a bundled third-party administrator. I thought hiring them would be a mistake, but the sponsor was still interested. I talked to the provider and they were trying to allay my fears before they did break the one cardinal rule: they offered me free tickets to a sporting event as their guest.

My wife will say I don’t charge enough for my service and she’s probably right. But one thing I can’t do is give anyone the impression that my opinions can be bought. While I have accepted sports tickets from providers where a client of mine wasn’t a client of theirs, I try to avoid situations that give the impression that I can be swayed by something that looks underhanded. While being schmoozed is a part of the business, it’s usual general schmooze that isn’t tied to a specific client of yours that might give the impression that you have a conflict of interest.

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Sometimes, change is anyone’s guess

An advisor asked me a very interesting question that had me thinking: since a good chunk of what an advisor does is helping a plan sponsor minimize their fiduciary duty, is it a proper plan expense to use assets to pay for something that protects the plan sponsor?

I thought it was a great question and I told the advisor that while it’s still a proper expense to compensate an advisor as a proper plan expense, the use of plan assets to pay an advisor for services in connection with something that would benefit a plan sponsor might be an improper expense in the future.

I will always contend that revenue sharing in 401(k) plans s only legal because the Department of Labor (DOL) and Congress hasn’t said it’s illegal when we know that record company payola is illegal. It’s possible that the DOL could one say that an advisor can only be paid from plan assets from services that are in connection to working with participants.

From where I sit, I don’t think there will be change because I think it would be too confusing to try to figure out the percentage of services that benefits participants or the plan sponsor. The DOL would probably not try to delineate the services just like the Internal Revenue Service has punted the ball on taxing accrued frequent flyer miles that business travelers get from travel that they didn’t pay for.

I don’t think I have the answer to the question, but I loved it because it’s a great topic to try to figure out.

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