W. Scott Simon, J.D., CFP®, AIFA®, BCF®

W. Scott Simon is Bates Testifying and Consulting Expert who provides services in two broad subject matter areas. 

The first is at the state level and relates to the Uniform Prudent Investor Act (UPIA) as well as other uniform and model acts, and the Restatement (Third) of Trusts (Restatement) which includes the Prudent Investor Rule. 

The second is at the federal level and relates to Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA) and its broad fiduciary duties - loyalty, prudence, diversification and the need to follow all plan documents not in conflict with ERISA. 

Simon developed his expertise and broad experience as a result of having authored a pioneering book on index mutual funds 25 years ago and a well-received book on the UPIA over 20 years ago, serving as a principal at a fee-only, SEC-regulated registered investment advisory firm for 15 years that focused on 401(k) and other retirement plans, and writing a widely read monthly column for Morningstar on fiduciary investment matters for 17 years (2003-2020). 

Simon’s services include testimony at depositions, arbitrations and trials, preparation of written opinions, evaluation of cases and offering litigation support. 

Apart from his expert witness engagements, Simon specializes in providing discretionary fiduciary investment advisory services to retirement plans pursuant to section 3(38) of ERISA. Sponsors of ERISA-governed retirement plans such as 401(k) plans, state law-governed 457(b) plans and 401(a) plans, as well as 403(b) plans (whether or not governed by ERISA) can all benefit from this legally significant solution which allows plan sponsors to off-load their fiduciary responsibilities (and associated liabilities) for selecting, monitoring and replacing a plan’s investment options. 

EXPERTISE IN STATE SUBJECT MATTER AREAS 
The standards of the UPIA, derived from the essential principles of fiduciary prudence laid down by the Restatement – with both based in the common law of trusts – bear on the conduct of fiduciaries that invest and manage the assets of private family trusts. The UPIA has been enacted into law by virtually every state as well as the District of Columbia and the U.S. Virgin Islands. Simon’s expertise in state level subject matter areas includes: 

• Investor disputes with banks, trust companies and RIAs  
• Intra-family trust disputes 
• Standards of trustee fiduciary duties 
• Breaches of standards of trustee fiduciary duties 
• Prudence of existing trust portfolios 
• Diversifying the risk of trust portfolios 
• Reasonableness of the costs of trust portfolios 
• Investment management 
• Principles of investing 
• Asset allocation 
• Modern portfolio theory 

UPIA’s standards also bear on the investment conduct of fiduciaries of public pension plans pursuant to the Model Management of Public Employee Retirement Systems Act in the few states that have enacted this Model Act. 

In addition, the standards of the UPIA govern the investment conduct of fiduciary directors and trustees for charitable non-profits such as foundations and endowments pursuant to the Uniform Prudent Management of Institutional Funds Act. 

EXPERTISE IN FEDERAL SUBJECT MATTER AREAS 
Simon’s expertise gained working with ERISA-governed retirement plans for 15 years, as well as his investment knowledge and legal background, give him a unique perspective shared by few. His aim has always been to both enhance the retirement income security of participants in retirement plans and reduce the legal liabilities of plan fiduciaries simultaneously by providing plan investment options that are: 

• Cost efficient 
• Well-diversified (thorough diversification can enhance investment return for plan participants which helps legally protect plan fiduciaries) 
•  Legally sound 
• Academically based 

Simon has consulted regularly with plan sponsors on a wide range of issues related to ERISA- (and non-ERISA-) governed plans including helping sponsors avoid the conflicts of interest common in the retirement plan environment. 

Simon has also met one-on-one “in the trenches” with hundreds of plan participants over the course of his career to provide them with prudent investment education and advice. 
It should be noted that 457(b) and 401(a) public employee pension plans for towns, counties, states and special districts (and non-ERISA-governed 403(b) plans) are not governed by ERISA but by state fiduciary statutes. However, many states incorporate relevant language (often verbatim) from the federal law of ERISA into these statutes.