PLANSPONSOR - October-November 2022 - 36

INVESTMENTS | OPINION
Good Practices
An industry leader weighs in on plan governance and litigation
D
uring his time serving as the
assistant secretary of labor for
the Employee Benefits Security
Administration, Brad Campbell led the
effort to draft and issue several key final
regulations. Notably included are the
establishment of the qualified default
investment alternative and the safe harbor
framework that facilitates automatic
enrollment, automatic escalation and
the use of pre-diversified investments in
defined contribution plans. He also helped
orchestrate sweeping changes to pension
regulations through implementation of
the Pension Protection Act of 2006, issuing
nearly 30 regulations and major guidance
documents during his tenure.
As a partner in legal firm Faegre
Drinker, Campbell continues to exercise
his policy vision in the service of retirement
plan clients, service providers and
other Employee Retirement Income
Security Act fiduciaries as they work to
operate compliant and effective plans.
PLANSPONSOR: You specialize in ERISA
Title 1 issues, including Department
of Labor investigative defense, and you
continue to do a lot of work on the regulatory
side. Could you offer an update on
the litigation landscape that's affecting
the investment decisions that folks are
making?
Brad Campbell: Though I'm never happy
to see the new and creative ways the trial
lawyers try to invent ERISA claims, recent
events have been personally vindicating
for all the ERISA lawyers such as myself
who have been saying, " Don't try to follow
the trends in litigation; do things the right
way. " A fiduciary's job is to create and use
a prudent, thorough, well-documented
36 PLANSPONSOR.COM October - November 2022 Art by Jonathon Rosen
fiduciary process to make decisions. Don't
say passive is better than active because
passive is cheaper so maybe we won't get
sued-a bunch of plans are being sued
right now, alleging their passive funds have
underperformed. Running from the latest
trend isn't good, prudent process [either],
and that won't protect you in a lawsuit.
What will protect you is good fiduciary
practice. Notice I didn't say " best. "
Never say " best practices " and " ERISA "
together, because that implies there's one
answer, and there usually isn't. There are
good fiduciary practices, not best.
PS: There's now evidence to really demonstrate
what many have been saying all
along: The trial bar is going to sue fiduciaries
for any argument they can make with
a straight face-and maybe one without,
as we've recently seen with a $1.5 million
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PLANSPONSOR - October-November 2022

Table of Contents for the Digital Edition of PLANSPONSOR - October-November 2022

INSIGHTS
INDUSTRY ANALYSIS
RULES & REGULATIONS
UPFRONT
Deep Dive
Managing Volatility
New Solutions
Participant ESG Demands
Good Practices
FIDUCIARY FORUM
INSIDE ANGLE
PLAN PROFILE
PLANSPONSOR - October-November 2022 - Cover1
PLANSPONSOR - October-November 2022 - Cover2
PLANSPONSOR - October-November 2022 - 1
PLANSPONSOR - October-November 2022 - INSIGHTS
PLANSPONSOR - October-November 2022 - 3
PLANSPONSOR - October-November 2022 - RULES & REGULATIONS
PLANSPONSOR - October-November 2022 - 5
PLANSPONSOR - October-November 2022 - 6
PLANSPONSOR - October-November 2022 - 7
PLANSPONSOR - October-November 2022 - 8
PLANSPONSOR - October-November 2022 - 9
PLANSPONSOR - October-November 2022 - UPFRONT
PLANSPONSOR - October-November 2022 - 11
PLANSPONSOR - October-November 2022 - 12
PLANSPONSOR - October-November 2022 - 13
PLANSPONSOR - October-November 2022 - 14
PLANSPONSOR - October-November 2022 - 15
PLANSPONSOR - October-November 2022 - Deep Dive
PLANSPONSOR - October-November 2022 - 17
PLANSPONSOR - October-November 2022 - 18
PLANSPONSOR - October-November 2022 - 19
PLANSPONSOR - October-November 2022 - 20
PLANSPONSOR - October-November 2022 - 21
PLANSPONSOR - October-November 2022 - 22
PLANSPONSOR - October-November 2022 - 23
PLANSPONSOR - October-November 2022 - 24
PLANSPONSOR - October-November 2022 - 25
PLANSPONSOR - October-November 2022 - Managing Volatility
PLANSPONSOR - October-November 2022 - 27
PLANSPONSOR - October-November 2022 - 28
PLANSPONSOR - October-November 2022 - 29
PLANSPONSOR - October-November 2022 - New Solutions
PLANSPONSOR - October-November 2022 - 31
PLANSPONSOR - October-November 2022 - 32
PLANSPONSOR - October-November 2022 - 33
PLANSPONSOR - October-November 2022 - Participant ESG Demands
PLANSPONSOR - October-November 2022 - 35
PLANSPONSOR - October-November 2022 - Good Practices
PLANSPONSOR - October-November 2022 - 37
PLANSPONSOR - October-November 2022 - FIDUCIARY FORUM
PLANSPONSOR - October-November 2022 - INSIDE ANGLE
PLANSPONSOR - October-November 2022 - PLAN PROFILE
PLANSPONSOR - October-November 2022 - Cover3
PLANSPONSOR - October-November 2022 - Cover4
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