If there’s one thing life teaches you, it’s that there’s more profit to zigging when the rest of the world is zagging.

This means a little bit more than merely acting the contrarian. It implies earnest study on the exact “Whys?” and “How Comes?” as it pertains to the zagging habits of the masses. In a way, this borrows from the advice of Sun Tzu’s Art of War, when he said, “If you know the enemy and know yourself, you need not fear the result of a hundred battles.”

Several related quotes that careful 401(k) plan sponsors ought to be most mindful of, include “take advantage of the enemy's unreadiness, make your way by unexpected routes, and attack unguarded spots,” “If the enemy leaves a door open, you must rush in,” and “He will win who, prepared himself, waits to take the enemy unprepared.”

Perhaps the most telling quote, and one trial attorney Charles Field alludes to when he says “ERISA does not permit complacency, (see “Exclusive Interview with Charles Field: Less Restrictive Open 401k MEPs Relieve Some Burdens for Smaller Employers,” FiduciaryNews.com, June 20, 2017), is “If the enemy is taking his ease, [the attacker] can harass him.”

Field, like the ubiquitous Jerry Schlichter, comes from that breed of lawyer most feared by plan sponsors, their service providers, and retirement fiduciaries in general. While today he’s a trial attorney, for most of the early part of his career he represented the other side of the aisle.

What does that mean? It means he more than just “knows his enemy like he knows himself” -- he knows where all his enemy’s skeletons are buried. That’s a scary thought for the mild-mannered plan sponsor.

Yet Field was kind enough to share several bullet points’ worth of tactics that might alleviate some of the fiduciary risk 401(k) plan sponsors least understand and most fear. Indeed, he believes that, with the implementation of the DOL’s long awaited fiduciary rule, “We have reached a watershed moment for retirement planning and saving.”

Given its vast amount of publicity, it has never been more clear what the nature and risk of playing the role of fiduciary is to plan sponsors. Field warns, though, that the biggest risk to plan sponsors is to fail to fully understand the scope of their fiduciary duty.

The dangers inherent in this “watershed moment,” indeed, during any period when we find ourselves on the cusp of a major transition, reside in the lack of established templates to define the new paradigm.

Unfortunately, for unsuspecting plan sponsors (and their service providers), the usual way to establish those templates is via case law. That means tort lawyers pressing the issue in a way that the courts, rather than the regulators, decide what the real rules are.

It appears the original intent of the rule recognizes the significance of this legal process and baked it into the cake. That makes the DOL’s life a little easier, but the fuzziness of definitions can understandably cause angst within plan sponsor circles.

Eventually, according to Field, “clean shares” – mutual fund shares without conflict-of-interest fees – will come to dominate the market. This will remove a major risk plan sponsors currently find themselves exposed to. Removing conflict-of-interest fees, however, won’t entirely alleviate the downside for plan sponsors. The only way to reliably reduce that liability requires a well-documented process (complete with adequate benchmarks) and on-going due diligence.

In the words of Dory, the scatter-brained yet surprisingly wise fish sidekick in the movie “Finding Nemo,” this is a “just keep swimming” strategy. Times of transition contain fast-moving currents. What’s normal and accepted today is anomalous and shunned tomorrow. Plan sponsors do themselves no favor by resting on their laurels expecting the world to maintain a peaceful stasis.

Don’t take your ease. Don’t allow the DOL to harass you. Don’t allow class-action attorneys to harass you.

Just keep swimming.

Instant Insights /

Plan sponsors beware -- 'ERISA does not permit complacency': Carosa

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