Time to Consider a Collective Trust?

One retirement plan service provider says collective investment trusts (CITs) can be a powerful answer to demand for customized target-date vehicles and less expensive investment strategies.

For those who need a crash course in CITs, Kent Buckles, executive vice president of retirement strategies for Reliance Trust, says the products often serve as an alternative to mutual funds. CITs are investment vehicles in which assets from multiple plans can be commingled into one trust.Each CIT is managed professionally on behalf of those plans and not open to the public. For that reason, they’re only available as an investment option within employer-sponsored plans that have negotiated an agreement with the CIT provider.

Another defining characteristic of CITs is that they are regulated more as a banking product than an investment fund, Buckles says. Therefore the products fall under the oversight of state banking regulators and the federal Office of the Comptroller of the Currency (OCC), rather than the Securities and Exchange Commission (SEC). The OCC regulators are rigorous in their examinations of trust companies and CITs, he says, but providers in the space are advantaged in that the OCC requires less documentation and pre-approval compared with the SEC. 

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Buckles says the appeal of CITs for plan sponsors and fiduciaries is generally a lower expense profile and an improved ability, especially for larger plans, to create unique investment funds that address the needs of real plan participants in a more refined way then retail target-date funds. This can be accomplished because the sponsors can work directly with fund managers to discuss and meet the investing needs of their participants, factoring real-world demographic data into portfolio design decisions. Mutual funds, on the other hand, tend to make portfolio decisions based on much wider demographic considerations.

CITs have historically been used in defined benefit (DB) plans and in the larger defined contribution (DC) and profit sharing plans. DC plan sponsors moved away from CITs as retirement plan administration moved to daily valuation. CITs weren’t priced daily or traded daily, but that issue has disappeared. Today CITs trade on the same platform as mutual funds. Internet connectivity allows plan participants to track performance of their CITs on a daily basis.

“The growth really isn’t all that different from what you see happening in other parts of the industry, which is to say it’s strong,” Buckles tells PLANADVISER. “You never know exactly what the numbers are in total, but based on the research that we see, the growth seems to be pretty dramatic for collectives overall. Especially within the defined contribution space and among more of the smaller plan segments.”

A 2013 survey by financial research and consulting firm Celent found, from 2006 to 2010, the share of collective trusts as a percentage of the defined contribution market doubled—from 10% to 20%. In actual dollars, the jump was from $400 billion to $900 billion, the survey report, “The Defined Contribution Market,” noted.

At Reliance Trust, assets in CITs have grown from a small portion of the firm’s $100 billion in total assets under management to about $6 billion since the firm first introduced a CIT product more than a decade ago—with most of the growth coming from a significant acceleration in the last three years. Buckles says Reliance’s developments in the field have largely paralleled the wider industry movements, both in terms of annual growth and the type of products that sponsors are interested in.

“The first collective fund we offered was a stable value fund—and we have stable value funds that we still sponsor,” Buckles says. “Beyond that, we have moved into offering funds in the fixed-income space, real estate, and stand-alone large cap equity funds, and of course the target-date offerings are becoming increasingly popular.”

In general, Buckles says the streamlined reporting requirements and the elimination of excess administration possible through a collective trust arrangement allows participants to access diversified investment funds at a 10 or 15 point discount compared with mutual funds that take similar strategies. He has seen examples where plans have been able to replace actively managed mutual fund options with more passive-based CITs, cutting as much as 50 basis points from investment costs.

Another point Buckles is quick to make about CIT growth is that it’s not just coming from the large DC plans and big pension funds that have traditionally had the asset-muscle to benefit from economies of scale via access to preferred share classes.

“In the smaller plans, what’s attractive about the collectives is that because they are comingled, you don’t have the limitations that you’ll have with an institutional fund on the mutual fund side,” Buckles explains. “So if you want to offer a low-cost institutional mutual fund, usually you’re going to have some type of a minimum amount before you’ll be able to invest in the best share classes. You don’t have that issue with the collective arrangement.”

That’s because the trust company providing the CIT serves as both the fund trustee and administrator—delivering many of the pieces that are required to bring the products to participants and the marketplace, such as daily valuations, fund fact sheets, Morningstar updates, and all the related legal documentation. When all of those functions are brought under one roof, they can be done more efficiently.

“So we are the manufacturer, not so much the distributor,” Buckles explains. “Though we do have some wholesalers that talk to advisers about our offerings, generally speaking the distributors are really the recordkeeping platforms, the independent advisers, etc.”

Buckles says plan sponsors also tend to be attracted to the fact that, in its role as a trustee of assets earmarked for a CIT arrangement, the provider becomes a plan fiduciary.

“For that reason, we’re directly liable if there’s anything that’s found that’s not in compliance with the OCC regulations,” Buckles says. “That’ means we’re aggressively self-policing, and each of our funds has to be audited by a third party at least once a year.”

Adviser Not Liable for Plans' Bad Investment

A federal appellate court found a registered investment adviser for two pension plans was not a fiduciary for those plans.

In the case of Tiblier v. Dlabal, the 5th U.S. Circuit Court of Appeals affirmed summary judgement in favor of Paul Dlabal by the U.S. District Court for the Western District of Texas. The district court concluded that Dlabal had not violated the Employee Retirement Income Security Act (ERISA) because he provided plaintiffs with written disclosures regarding the investment risks of a particular investment that went sour. The appellate court said it need not address that issue because it concludes Dlabal was not a fiduciary as defined by ERISA. 

In its opinion, the appellate court noted that in order for the defendant to be considered a plan fiduciary under ERISA, the following conditions would have to take place: “(i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.”

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The 5th Circuit found, “the plaintiffs have not provided any evidence indicating that Dlabal had the authority or control contemplated under subsection (i).” It added that whether the plaintiffs gave Dlabal discretionary authority or control over the plans is irrelevant because it is undisputed that Dlabal did not exercise that authority with respect to the only transaction at issue in the case.

The court said Dlabal is not considered a fiduciary because he did not receive a fee from the plans in connection with the particular investment mentioned in the lawsuit, but rather he received compensation from a third party. While Dlabal was entitled to a recurring annual fee from the plans for this particular investment, he instead chose to take a portion of the commission that Adageo paid to a third-party broker/dealer used to make this private placement investment. "Under our binding precedent in American Federation of Unions Local 102 Health & Welfare Fund v. Equitable Life Assurance Society of the United States, this third party commission is not a fee under §1002(21)(A)(ii)," the court said.

Finally, the court noted the plaintiffs concede that the third prong of the fiduciary test does not apply as Dlabal “played no part in the administration of the plans.”

The lawsuit and subsequent appeal were filed by Eric Tiblier and his wife Susan Tezlaff. The two had employed Dlabal as an investment adviser for their personal investments and for the two pension plans established for Tiblier’s cardiology practice. One investment proposed by Dlabal was the corporate bonds of an oil and gas startup company named Adageo Energy Partners. 

In 2010, Adageo ceased making interest payments to the bonds. In 2012, Tiblier and Tezlaff filed their suit, claiming Dlabal and CACH Capital Management, the firm with which he was affiliated, breached their fiduciary duty under ERISA, including by transfer and self-dealing. In essence, plaintiffs alleged that the Adageo bonds were an unsuitable investment for the plans’ funds, and that Dlabal made multiple oral misrepresentations to plaintiffs in violation of his fiduciary duties.

The ruling by the 5th Circuit can be downloaded here.

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