…Absolutely
guaranteed anonymity – Former Musician’s Union officer
…The
one voice of reason in a sea of insanity – Nashville ‘first call’
scoring musician
…Allows
us to speak our minds without fear of reprisal – L.A. Symphonic musician
…Reporting
issues the Musicians Union doesn’t dare to mention – National touring musician
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I. 26.85 Million Settlement Against AFM for Gross Trustee Mistakes
[Similar to Trump, and as expected, trustees did not acknowledge they did anything wrong.]
The musicians pension lost
big time on risky bets; then a Cheltenham-born saxophonist led a suit that won
a $27 million settlement
Who pays when the
people who oversee retirement plans bet on risky investments and end up losing
big time?
Thursday’s
settlement deal in a case brought by a onetime Philadelphia area saxophonist
against a $2 billion musicians’ pension fund shows that the trustees who ratify
advisers’ and outside managers’ investment picks can be held responsible for their
mistakes.
Management and
labor trustees who oversaw the American Federation of Musicians and Employers’
Pension Plan for 50,000 working and retired entertainers will have to pay the
fund $26.85 million — minus up to $10 million in legal costs– to settle a
civil complaint that they gambled tens of millions away on poorly performing
private equity and foreign investments. They did all that while avoiding U.S.
stocks even as their value soared in the early and middle 2010s.
That’s according to
the agreement between lawyers for trustees for the joint plan, co-managed by
the American Federation of Musicians labor union, a group of employers
including Time-Warner, Disney and Broadway theater owners, and the musicians
who brought the suit, including Andy Snitzer, a Cheltenham High graduate known
for his work with Paul Simon, Sting, and the Rolling Stones.
Pending approval
from a federal judge in New York, the money will be paid by trustees’ board
insurance — which, though adequate in this case, is rarely called on to cover
claims this expensive, said the musicians’ lawyers Steven A. Schwartz and
Robert J. Kriner Jr. of Haverford-based Chimicles Schwartz Kriner &
Donaldson-Smith.
Lawyers for the
industry trustees, at the big New York corporate law defense firm Proskauer
Rose, confirmed the settlement, which avoids “a needless and disruptive court
battle” but does not result in trustees acknowledging they did anything wrong,
according to a statement by James Chase, for the trustees.
“We have always
taken our fiduciary responsibility seriously and acted prudently in the best
interests of all Plan participants,” he added, speaking for the trustees. He
noted that the trustees took other steps to cope with the funding deficit,
including sharp cuts to benefits and early retirements, and boosted employer
contributions, which rose from $54 million in 2009 to $76 million last year.
Besides paying
cash, Chase noted the plan has agreed to reforms. Those include the appointment
of veteran pension lawyer Andrew Irving as Neutral Independent Fiduciary
Trustee for the musicians’ plan, which Schwartz said would make it less likely
that the trustees will make high-risk investments.
The pension could
certainly use additional cash. It had $1.8 billion in assets and $3 billion in
liabilities as of early 2019, making it about 60 percent funded. It has only
21,000 working members paying in, compared with 15,000 retirees or survivors
who are collecting and 14,000 others who no longer work but are eligible to
collect.
What went wrong? The
plan “got clobbered” in the stock market collapse of 2008. The trustees
realized that, with a high proportion of retirees to paying members and fewer
musicians making a living in the digital era, “the pension plan would run
out of money” in 30 to 40 years, said Schwartz, the musicians’ lawyer.
What to do? By
2010, the U.S. stock market had fallen by nearly half from its
pre-mortgage-crisis high. Plan leaders — including union heads elected by
members, as well as employer representatives (the Philadelphia Orchestra was
part of the plan before its 2011 bankruptcy) — should have broadcast the
fund’s dim future and pushed for more pension contributions or reduced
benefits.
But instead of
braving those unpopular steps, trustees “made a decision: ‘Let’s gamble our way
out of this,’” said Schwartz.
Among other steps,
they doubled investments in two categories — “emerging” stock markets in
developing economies , and private equity, typically buyouts of troubled U.S.
companies. Those bets came to comprise 9 percent of the fund, and reduced
investment in U.S. stocks, which were beginning their longest sustained price
increase since World War II.
Over the next year,
“emerging markets,” instead of rising, fell so sharply that market wags called
them “submerging markets.” Many private investments also floundered.
That didn’t scare
the board. “They doubled down,” said Schwartz, boosting emerging markets to 11
percent and private equity to 15 percent — totaling more than a quarter of the
fund, from less than 5 percent two years earlier. At the same time, they
continued to reduce U.S. stocks to around 20 percent at a time when the
Philadelphia city pension system and many other large plans were closer to 40
percent.
U.S. stocks
continued to beat the private and foreign investments that the trustees
favored. No matter: In 2015 the board approved boosting emerging markets yet
again, to 15% of the fund, and private equity to 18 percent — totaling
one-third of plan assets.
Many of those
investments proved a drag on plan returns. They reduced profits when other long
term investors, including the Montgomery County pension fund, were switching to
Vanguard Group-style index funds, which, they noted, tended to do as well as or
better than professional stock-pickers, at lower fees.
According to the
complaint, the fund didn’t make clear enough to the members that it was in
trouble, as required under the federal ERISA law. “It’s easy to play ‘hide the
ball’ in reports to pension plan participants,” said lawyer Kriner. The
trustees’ lawyers said their clients complied with the law.
Growing worries
about the pension plan and the prospect that benefits might have to be cut led
to the formation of a dissident union group, Musicians for Pension Security. In
2018, Tino Gagliardi, a pension trustee, and career trumpeter, was defeated in
his bid for re-election as president of musicians’ Local 802 in New York. (He
remains on the pension board.)
Will the fat legal
settlement clear the way for other pension complaints against trustees? “I bet,
when you see some of these pension plans tanking and losing value in the
future, if you look at their prior disclosures, you’ll see similar problems,”
said Kriner.
Still, the
musicians’ case has unusual features, said Schwartz. “No other plan took quite
this kind of allocation plan,” he said. The trustees had effectively “pulled
the goalie,” he said, referring to the hockey move where the losing team
replaces its goalie for an attacker in hopes of coming from behind — but risks
losing more decisively.
From January 2010 –
November 2017 the Plan had average annual returns of about 7.56%, according to
the plaintiffs; Vanguard’s Index Balanced Fund returned 9.79% in that period, a
significant difference underlining the shortfall from the trustees’ unusual,
aggressive approach, said Schwartz.
“The
message here is, if you are going to take out-of-the-box risks as a pension
plan trustee, you better disclose that you are doing that, and make very sure
about understanding, not just the potential upside of the risk, but also the
downside.”
===================================================
II. ANOTHER INCOME DRAIN FOR THE AFM
For years, the AFM was charging $50 per musician for foreign orchestras who wanted to tour in the US. Some years ago, those fees were raised to $250 per player. Apparently the AFM has become quite dependent on these fees.
With the Covid-19 Pandemic, that income has vanished and it was reported by a New York member that the AFM might wind up having trouble paying their Time Square rent if it lasts more than a few months.
============================================
III. COMMENTS
I heard this idea floated by
a few people and it’s worth repeating here:
With work now disappearing
at a rate (I’m in NYC and never seen it so bad) never seen before because of
the Corona Virus, we all need to write the Film Musicians Secondary Markets
Fund and DEMAND they release our residuals payments NOW rather than wait til
July 1st.
please email: Kim Roberts at
that office at
[email protected]
and cc your local president
esp NY and LA
feel free to share and good luck to all out there
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We are a quartet and sometimes work as a string trio. We cannot pull extra money out of wedding clients to pay for the associated taxes for AB5. We will have to stop working if this law persists.
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Thank
you for taking the time to post this Brian! If you haven’t already done so,
please consider posting this (in it’s entirety) on all of the AB5 Facebook
groups such as California Independent Music Professionals United, Freelancers
Against AB5, etc. You are in a unique position to effectively illustrate how
many different freelance positions are filled by both union and nonunion
INDEPENDENT CONTRACTORS. AB5 will destroy these peoples’ livelihoods.
Thank you for posting!
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It really is all hands on
deck to get this earnings killer repealed! It doesn’t matter your political
bent if your government is responsible for you not being able to make a
legitimate living. AB5 is an equal opportunity destroyer.
Until
Next Time, be safe,
THE
COMMITTEE