Why the “Passive vs. Active” Investment Debate is the Wrong Issue

The investment industry is embroiled in a “great debate” concerning which investment philosophy is best: active vs. passive management. The debate concerns how the building blocks (asset classes) that make up the portfolio are constructed. The raging question is whether investment advisors should use passive index funds and ETFs as the building blocks or whether…

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The trustee’s duty to diversify or “Too much of a good thing?”

There is no simple rule for identifying how much diversification is enough. A prudent trustee will develop a record that demonstrates they have reviewed the liquid assets held within the portfolio to confirm that there is a reasonable level of diversification at the (1) security level, (2) sector level, and (3) asset class level.

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ERISA §1104(a)(1)(C) re Diversification

Diversification

US Code §1104(a)(1)(C) states, “A fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries… by diversifying the investments of the plan so as to minimize the risk of large losses…” The court in Marshall v. Glass/Metal (D. Haw. 1980) noted, “Ordinarily the fiduciary should not…

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ERISA §1104(a)(1)(C) re Diversification

Diversification

US Code §1104(a)(1)(C) states, “A fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries… by diversifying the investments of the plan so as to minimize the risk of large losses…” The court in Marshall v. Glass/Metal (D. Haw. 1980) noted, “Ordinarily the fiduciary should not…

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UPIA §2(b) re Duty to Balance Risk and Return

Duty to Balance Risk and Return

The preamble to the Uniform Prudent Investor Act notes, “The tradeoff in all investing between risk and return is identified as the fiduciary’s central consideration.” For most trustees determining the return that was produced by the assets held in trust is a fairly straightforward exercise. But measuring risk can be more problematic. What’s the Risk?…

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Reconciling the Duty to Diversify

Diversification

When is the trust capital adequately diversified? Is owning five single family houses in Long Beach, California diversified? Is owning one index mutual fund that holds over 1,000 securities diversified? And what is the trustee to do if the asset that originally funded the trust was NOT diversified?

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A Trustee’s duty to monitor the risk within the trust portfolio

Duty to Establish Risk Expectations:  Section 2(b) of the Uniform Prudent Investor Act directs that “A trustee’s investment and management decisions respecting individual assets must be evaluated not in isolation but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk [expectations] reasonably suited to the…

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Duty re Liquidity or “What’s the Game Plan?”

Statutory Considerations: Section 2(c)(7) of the Uniform Prudent Investor Act directs that, “Among circumstances that a trustee shall consider in investing and managing trust assets are… needs for liquidity, regularity of income, and preservation or appreciation of capital.” A prudent trustee understands that there will be periods when the portfolio does not accomplish the established return objectives, though the…

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How is a targeted return like UBER?

A trustee would not get into an Uber until they defined the destination for their ride. A trustee would not hire an employee without describing at some level the work the employee was being hired to do. So then, why do so few trustees communicate a targeted rate of return to the investment advisor to…

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