Confero Summer 2013: Issue 3 - Page 9

RES IPSA LOQUITUR “the thing itself speaks” ‘under the circumstances then prevailing … a prudent man acting in a like capacity and familiar with such matters’ would seek outside counsel, is imprudent and a violation of ERISA.” (Katsaros v. Cody) A word of caution with regard to plan sponsors seeking outside council – although failure to do so may be regarded as a breach of fiduciary duty by the courts, case law has held that “blind faith” in the advice of an independent expert does not necessarily relieve a plan sponsor of his liability. Courts have held that while plan sponsors should retain the services of third part consultants when circumstances necessitate it. Plan sponsors should use the advice appropriately, basing their decisions upon the particular facts and individual needs and requirements of their participants and beneficiaries, “… (the court) believes that ERISA’s duty to investigate requires fiduciaries to review the data a consultant gathers, to assess its significance and to supplement it where necessary.” (Unisys Savings Plan Litigation, 74 F. 3d 420 (3rd Cir.), (1996) The timing of this is important because experts warn that in the past twelve months the Department of Labor has been “cracking down on retirement plan advisors for fiduciary negligence.” This is significant because it should serve as a “heads-up” to plan sponsors to bring their “A” game to the table. Understand what your duties and responsibilities are to the plan and the participants and beneficiaries. Make certain as a plan sponsor you are meeting your fiduciary responsibilities under ERISA. If you are uncertain or do not understand how to carry out your duties as a plan sponsor seek outside counsel – it is not only prudent, it is legally required! Be worthy of the trust that is placed upon you by the participants! Meet your fiduciary duties – it’s the law! HARPER DANESH Actuarial Consulting • Retirement Planning We partner with organizations to help them: ■ Analyze their retirement plans and recommend strategies to meet their needs ■ Manage their pension plan costs to align with their business strategy ■ Identify and transition to alternative retirement programs if desired Call Harper Danesh and team up with the experts. E X P E R I E N C E • S E RV I C E • VA L U E 399 Alexander Street, Rochester, NY 14607 | 585.319.4218 | Benefits you deserve | 7