Berkshire Hathaway Sued Over Retirement Plan Design Changes

Participants of retirement plans sponsored by Acme Building Brands Inc., a subsidiary of Berkshire Hathaway Inc., have sued their employer over changes to benefits.

Two present employees and one former employee filed the suit in the U.S. District Court for the Northern District of Texas challenging the firms’ decision to freeze accruals to Acme’s defined benefit plan and reduce the company matching contribution rate in its 401(k) plan. The plaintiffs contend that the acquisition agreement by which Berkshire Hathaway acquired Acme approximately 14 years ago requires Acme to permit participants to accrue additional defined benefits indefinitely, at the same rate that benefits were being accrued at the time of the acquisition, and to make additional 401(k) matches forever, at the same rate as the matches at the time of the acquisition.

The complaint seeks restitution for participants because “Berkshire Hathaway’s agreement is either an amendment to the retirement plans, in which case the employees are entitled under [the Employee Retirement Income Security Act] to the enforcement of the retirement plans in accordance with their terms, or, in the alternative, it is a contract for the benefit of the employees, and its breach entitles the employees to damages.”

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In a press release related to the suit, Berkshire Hathaway says it “strongly believes this interpretation of the acquisition agreement is clearly wrong and expects that its actions will be upheld by the courts.” The press release quotes an extended section of the acquisition agreement at issue in the suit:

“For purposes of all employee benefit plans (as defined in Section 3(3) of ERISA) and other employment agreements, arrangements and policies of Parent under which an employee’s benefit depends, in whole or in part, on length of service, credit will be given to current employees of the Company for service with the Company prior to the Effective Time, provided that such crediting of service does not result in duplication of benefits. Parent shall, and shall cause the Company to, honor in accordance with their terms all employee benefit plans (as defined in Section 3(3) of ERISA) and other employment, consulting, benefit, compensation or severance agreements, arrangements and policies of the Company (collectively, the “Company Plans”); provided, however, that Parent or the Company may amend, modify or terminate any individual Company Plans in accordance with the terms of such Plans and applicable law (including obtaining the consent of the other parties to and beneficiaries of such Company Plans to the extent required thereunder); provided, further, that notwithstanding the foregoing proviso, Parent will not cause the Company to (i) reduce any benefits to employees pursuant to such Plans for a period of 12 months following the Effective Time, (ii) reduce any benefit accruals to employees pursuant to any such Plans that are defined benefit pension plans, or (iii) reduce the employer contribution pursuant to any such Plans that are defined contribution pension plans.

“The Company shall amend its Supplemental Executive Retirement Plans to provide that, effective as of the Closing, participants who have been ( or would have been) employed by the Company for 10 years or more as of the later of the Closing Date of December 31, 2000, shall be entitled to benefits under such plan upon termination of employment, if terminated within 12 months after the Effective Time, as if such participant was 55 years old at the date of such termination, subject to the other provisions of such plan.”

The complaint in Hunter v. Berkshire Hathaway is here.

Rethinking Risk and Return in Equity Portfolios

Retirement plan participants and other long-term investors should favor low-volatility stocks over riskier equities, according to a new analysis from Research Affiliates LLC.

In a new paper, “True Grit: The Durable Low Volatility Effect,” analysts from Research Affiliates question the tautology that riskier portfolios have higher expected returns over long-term investment horizons than do low-risk portfolios. It’s a piece of reasoning underlying much of the investment advice given to retirement plan participants: Riskier portfolios may suffer when the markets fall, but in the long run any losses will be more than compensated by the strong growth risky portfolios make possible.

“The theoretical relationship between ex ante risk and expected return is so obviously a truism that it seems silly to write about,” the Research Affiliates paper explains. “But we bring it up here precisely because ‘it goes without saying.’ The statement that one must accept higher risk to earn higher returns is axiomatic. It is, in fact, such a basic proposition that classical and neoclassical finance simply cannot be stretched or twisted to accommodate contrary observations.”

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However, the paper argues that as the investment management industry learns more about behavioral finance and becomes more willing to question whether markets truly turn on rational, utility-maximizing behavior, the traditional axioms of risk and return will increasingly come into question.

As Research Affiliates explains, behavioral descriptions of why investors accept higher risk in longer-term portfolios “depend on the observation that many market participants have a clear preference for risky growth stocks.”

“Indeed, their partiality is so strong that, in addition to rejecting value stocks, they often drive the price of growth stocks to unrealistically high levels,” the paper explains. “In other words, many investors tend to shun the stocks that are out of favor—the value stocks in their opportunity set—and overpay for prospective growth.”

The outcome of this behavior is predictable, according to Research Affiliates: Low-priced stocks, which are less volatile, can frequently outperform the more volatile high-priced stocks, even over the long term. Research Affiliates says it has run an extensive economic simulation to test this theory, and the results are encouraging for the low-volatility approach to long-term investing.

For instance, while a simulated cap-weighted benchmark portfolio of U.S. stocks had annualized volatility of 15.45% and annualized returns of 9.81% based on economic data from 1967 to 2012, a theoretical low-volatility strategy showed both lower annualized volatility (12.55%) and higher annualized returns (11.65%). So called “low-beta” portfolios also outperformed traditional index-based approaches, securing 12.84% annualized volatility and 11.83% in annualized returns during the same period.

Strikingly, the Research Affiliates paper shows a similar pattern even for emerging markets. Between 2002 and 2012, the theoretical cap-weighted benchmark global emerging markets portfolio showed 14.59% in annualized returns and 23.83% in annualized volatility. This compares with annualized volatility of about 16.2% for both low volatility and low beta emerging markets portfolios, which both returned more than 21% during the 2002 to 2012 time period.

“The issue, then, is to make sense of a preference that often leads to self-defeating investment decisions,” the paper continues. “A simple, direct explanation of the low volatility effect is that many investors willingly accept lottery-like risk in pursuit of better-than-average returns. In other words, many investors are given to gambling.…Investors with a strong penchant for gambling are likely to choose high-risk stocks with large potential payoffs over low-risk stocks with unexciting expected returns.”

A more subtle behavioral explanation of the preference for risky stocks is grounded in textbook finance, the paper suggests: “Various forms of leverage can boost rates of returns. Many investors, however, are unable or unwilling to use leverage. For example, they may be subject to investment policy guidelines that prohibit borrowing, or they may not have access to low cost credit, or they may balk at the downside risk of a leveraged position.”

In this respect, risky stocks offer an outlet for leverage-constrained or leverage-average investors, including those in retirement plans, who are seeking higher returns. Additionally, institutional portfolio managers are often discouraged from overweighting low volatility stocks by an implicit mandate or explicit contractual requirement to maximize their information ratio relative to a cap-weighted benchmark, according to Research Affiliates.

From the client’s perspective, placing a tolerance range around tracking error facilitates monitoring aggregate asset class risk exposures and evaluating individual managers’ performance, Research Affiliates says. “Unfortunately, however, it also promotes closet indexing,” the paper explains. “And because cap-weighted indices favor the most popular stocks, closet indexing tends to sustain the low volatility effect.”

But can the “low-volatility premium” last if more investors take note? Research Affiliates says the increase in smart beta investing since the global financial crisis of 2008 “tells us that investors can successfully disavow the notion that the only way to get higher returns is to take more risk.” Further, the asset management industry is one fully steeped in tradition—meaning it's unlikely that a wide-scale push towards low volatility investing will dry up the potential premium. 

In closing, the paper explains there will most likely be periods when investors’ demand for low volatility stocks will drive up prices and reduce the return premium to a level that makes the strategy unattractive. Over the long term, however, “it is reasonable to expect low volatility investing to persist in producing excess returns.”

Research Affiliates published the paper, available here, as part of its Fundamentals research series. It was penned by Feifei Li and Philip Lawton.

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