- 31 -                                         
               The DOL regulations state that a fiduciary will satisfy the            
          prudent investor requirements of ERISA section 404(a)(1)(B) if              
          the fiduciary (i) gives appropriate consideration to the relevant           
          facts and circumstances of the investment or investment course of           
          action and (ii) acts accordingly.  29 C.F.R. sec. 2550.404a-                
          1(b)(1) (1997).  Pursuant to those regulations,                             
               "appropriate consideration" shall include, but is not                  
               necessarily limited to,                                                
                    (i) A determination by the fiduciary that the                     
               particular investment or investment course of action is                
               reasonably designed, as part of the portfolio * * * , to               
               further the purposes of the plan, taking into consideration            
               the risk of loss and the opportunity for gain (or other                
               return) associated with the investment or investment course            
               of action, and                                                         
                    (ii) Consideration of the following factors * * * :               
                    (A) The composition of the portfolio with regard to               
               diversification;                                                       
                    (B) The liquidity and current return of the portfolio             
               relative to the anticipated cash flow requirements of the              
               plan; and                                                              
                    (C) The projected return of the portfolio relative to             
               the funding objectives of the plan.  [29 C.F.R. 2550.404a-             
               1(b)(2).]                                                              
               The DOL requirements appear consistent with criteria set               
          forth by the Commissioner in Rev. Rul. 69-494, 1969-2 C.B. 88,              
          for testing compliance with the exclusive benefit requirement of            
          section 401(a)(2).  Those criteria are (1) cost must not exceed             
          fair market value at the time of purchase; (2) a fair return                
          commensurate with the prevailing rate must be provided; (3)                 
          sufficient liquidity must be maintained to permit distributions             
Page:  Previous   21   22   23   24   25   26   27   28   29   30   31   32   33   34   35   36   37   38   39   40   NextLast modified: May 25, 2011