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COLLECTED WISDOM™ on Fiduciary Related News and Intelligence

These are general fiduciary news items. Other topical areas you may find of interest that are not fully covered here include ERISA 404(c) Compliance and Fiduciary Duty, 401k Investment Committees, Fiduciary Responsibility and Liability Issues, and DOL's Final Fiduciary Rule and Best Interests Contract Requirement.

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New DOL Regulations Require Fiduciaries to Reevaluate ESG Investments

The DOL issued final regulations that, beginning on Jan. 12, 2021, require plan fiduciaries to only consider financial factors when selecting plan investments. While not specifically targeting Environmental, Social, and Governance investments, the regulations significantly alter the fiduciary process needed to support a plan's decision to offer them. Plan fiduciaries wishing to consider ESG factors when evaluating an investment can still proceed but should be cautious and careful to document their process.

Source: Lockton.com, November 2020

PEPs Carry Evolving Fiduciary Risks of Their Own

Among its many popular provisions, the SECURE Act amended ERISA to allow for pooled employer plans, referred to as "PEPs." Even so, the legal complexities that emerge when a single employer operates a retirement plan for its workforce are already immense and the same will certainly be true when it comes to building pooled employer plans.

Source: Plansponsor.com, November 2020

Why Fiduciaries Should Consider Outsourcing Plan Investment Responsibility

Plan sponsor fiduciaries who take a do-it-yourself approach to plan investments face huge potential exposure for underperforming investments and excessive plan fees. If you are a plan sponsor fiduciary who is losing sleep over all of this, it may be time to consider outsourcing your investment responsibilities to an investment manager or outsourced chief investment officer.

Source: Cohenbuckmann.com, November 2020

COVID-19 and Retirement Plan Fiduciary Obligations

COVID-19 has presented many challenges, including market volatility and business disruptions, which have placed added pressures on plan fiduciaries to comply with their ongoing obligations to prudently administer plans and plan investments. The steps outlined here will help employers and ERISA fiduciaries demonstrate prudence in plan operation and management and to mitigate their legal risk in response to the COVID-19 environment.

Source: Vanblacklaw.com, October 2020

401k Fee Lawsuits: What Can a Plan Sponsor Do?

Most weeks, a plan sponsor is sued for breach of fiduciary duty in connection with the investment choices offered under its 401k or 403b plans. A few of these cases get dismissed early in the proceedings. A few go to trial, but most cases settle. Unless dismissed, these claims, whether tried or settled, often involve million-dollar recoveries. What can a plan sponsor do to establish the best record possible if the sponsor and its fiduciaries decide that they want to defend themselves?

Source: Foley.com, October 2020

Fiduciary Insurance Costs Soar Amid New 401k Litigation

The extreme pace of new 401k lawsuits this year is showing the legally precarious spot most plan fiduciaries occupy, and that position is only becoming more difficult. It is rare for a plan to have a near-perfect design and watertight documentation showing the prudent process that went into it. And aside from that, the biggest source of protection from those lawsuits, fiduciary liability insurance, is getting harder to come by.

Source: Investmentnews.com (registration may be required), October 2020

DOL Submits Final ESG Rule to OMB

Release of the DOL's final rule addressing environmental, social, and governance factors in selecting plan investments appears to be imminent. Following a 30-day comment window that ended July 30 and more than 8,000 comment letters, the DOL on Oct. 14 submitted a final rule to the Office of Management and Budget for review.

Source: Ntsa-net.org, October 2020

The To-Do List for 401k Plans: 2020-2021 Edition

Being a retirement plan sponsor is a tremendous responsibility and the problem is that most plan sponsors don't understand that. Plan sponsors often act passively because they hire retirement plan providers to help them. The problem is that fiduciary responsibility doesn't allow plan sponsors the luxury to be passive when the buck stops with them. So that means you need to be active and understand what's going in the retirement plan industry that can impact your plan. With changes in how retirement plans are run and constant concerns with rampant 401k litigation, here is a to-do list.

Source: Jdsupra.com, October 2020

Pooled Employer Plans and 3(38) Fiduciary Advisers

One provider getting ready to launch a SECURE Act-enabled pooled employer plan on January 1 says he is already in conversation with advisers about combining 3(38) fiduciary oversight with PEP recordkeeping and administration.

Source: Planadviser.com, October 2020

Dudenhoeffer Strikes Again: Eighth Circuit Dismisses Two Stock Drop Cases Based on Nonpublic Information

The Eighth Circuit has affirmed the dismissal of two cases in which plan participants claimed that their plan's fiduciaries breached their duties of prudence and loyalty by failing to act on nonpublic information about events that later caused a substantial drop in the value of their employer's stock. In each case, the participants argued that they met the pleading standard established in the Supreme Court's Dudenhoeffer decision.

Source: Thomsonreuters.com, September 2020

Avoiding ERISA Lawsuits Isn't Hard

Proposed class-action lawsuits by retirement plan participants against their employers are on track for a fivefold increase between last year and this year, according to a Bloomberg Law analysis. Sixty-five class-action suits have been filed so far in 2020 and many of these suits are for excessive fees and/or the use of overpriced share classes. Often the reason for these lawsuits is simple neglect. Here are a few simple actions that can improve fiduciary processes and reduce litigation risk.

Source: Nwpsbenefits.com, September 2020

New Fiduciary Rule Ahead

The main theme of the DOL's new rule proposal is in alignment with other regulators -- the SEC and FINRA in particular -- but the agency is not surrendering its jurisdiction over tax-qualified retirement plans.

Source: Planadviser.com, September 2020

DOL Proposed Regulation Highlights the Risks of ESG Investing for ERISA Fiduciaries

The DOL issued a proposed regulation outlining the duties of an ERISA fiduciary when considering an investment that incorporates environmental, social, and corporate governance factors. Some believe that the DOL will likely move quickly to finalize the regulation before the end of the current administration's first term. The proposed regulation would make five basic changes to the current regulation.

Source: Verrill-law.com, August 2020

Changes to Retirement Plan Distribution and Disclosure Information

The IRS has updated its safe harbor Special Tax Notice required to be provided to plan participants about to receive a distribution from a tax qualified plan as part of the election package. Further out on the horizon, individual account plans will be required to provide "lifetime income illustrations" on at least one benefit statement provided to participants during a 12-month period as a result of provisions included in the SECURE Act. Here are five key points for plan fiduciaries.

Source: Troutman.com, August 2020

Keep Reminding Clients About the Importance of Being a Fiduciary

Advisors who are fiduciaries may make this a core part of their sales pitch to a new client. But they shouldn't assume that just because a client has signed on with them, that he or she understands why it matters. If your clients don't truly understand the difference between a fiduciary and nonfiduciary, all your good intentions could turn out to be worthless. An advisor's job of educating clients about the benefits of working with a fiduciary is never done.

Source: Morningstar.com, August 2020

401k Fiduciary Litigation on the Rise: Take These Steps Now to Avoid Liability Later

A recent spate of lawsuits against large employers' 401k retirement plans has refocused attention on the need for plan administrators to ensure that they are honoring their fiduciary duties and prudently managing their Plans. Plan administrators should take several steps now to ensure that they have good defenses when lawsuits are filed.

Source: Foley.com, August 2020

Fiduciary Duties for Financial Services Companies: The Unique ERISA Paradigm

With respect to recent proposals to impose fiduciary responsibilities on financial services firms, Eversheds Sutherland attorneys Mark Smith and Carol McClarnon review the ERISA fiduciary regime that has been in effect since 1974 and its distinctive features as compared to the common law of trusts and other fiduciary laws and consider as a case study bank collective investment trusts.

Source: Eversheds-Sutherland.com, July 2020

Stock Drop Litigation Is on the Rise: Will Your Retirement Plan Be a Target?

Stock price plunges caused by COVID and current market conditions create fertile ground for stockholder litigation, including claims by participants in retirement plans funded with employer securities that fiduciaries should have eliminated company stock investments to protect against declining values. These claims present a dilemma for plan fiduciaries who owe certain fiduciary duties to the plan and its participants but must also grapple with intricate securities laws governing company stock. One important aspect of defending these cases involves understanding the interplay between securities laws and fiduciary obligations under ERISA.

Source: Velaw.com, July 2020

DOL Guidance on ESG Investing by Retirement Plans: Investment Committees Should Handle with Care

Retirement plan investment fiduciaries would be well-advised to note the increasing level of scrutiny the DOL is applying to ESG funds in retirement plans. Selecting or retaining ESG funds can be fraught with increased audit risk, including, potentially, imposing penalties for breach of fiduciary duty under ERISA. 401k and other defined contribution plans are at enhanced risk.

Source: Benefitslawadvisor.com, July 2020

Retirement Plan Excessive Fee Litigation Heats Up This Summer

Until recently, it appeared that plaintiffs' firms had taken a hiatus from excessive fee litigation targeted at large companies. Now there has been an uptick in fiduciary litigation involving 401k and 403b plans of private employers. Last month, at least three new excessive fee cases were filed in Wisconsin and at least seven additional excessive fee cases were filed in other jurisdictions.

Source: Quarles.com, July 2020

Avoid Manager Concentration Risk With an Open-Architecture Target-Date Fund

As ERISA fiduciaries, plan sponsors are required to offer participants a menu that's diversified by investment type, but most defined contribution plan sponsors go further and diversify by an investment manager, too. Why? Because they recognize that different managers have different, often complementary, strengths. Yet that way of thinking doesn't always extend to a sponsor's choice of a target-date fund manager, which may expose participants to manager-concentration risk.

Source: Jhinvestments.com, July 2020

DOL Reinstates Five-Part Fiduciary Status Test and Proposes Class Exemption

The proposed exemption would create a pathway allowing investment advice fiduciaries under ERISA and the Internal Revenue Code to (i) receive compensation, including that which derives from rendering advice to roll over assets from employee benefit plans to IRAs, and (ii) engage in certain principal transactions that would otherwise violate the prohibited transaction provisions of ERISA and the Code. The proposed exemption would apply to registered investment advisers, broker-dealers, banks, insurance companies, and their employees, agents, and representatives who are investment advice fiduciaries.

Source: Wagnerlawgroup.com, July 2020

Proposed DOL Regulation Responds to Growth of ESG Investments by Prohibiting Subordination of Financial Interests

The DOL has proposed amending its investment duties regulation to clarify that plan fiduciaries must evaluate investments solely based on financial considerations, and may not subordinate the financial interests of participants and beneficiaries to environmental, social, corporate governance, or similarly oriented non-financial considerations. The proposal's preamble expresses concern that a growing emphasis on ESG investing may be leading ERISA plan fiduciaries to make investment decisions on grounds other than financial considerations. It stresses that financial considerations are paramount in selecting a plan investment or "investment course of action."

Source: Thomsonreuters.com, July 2020

DOL Proposes a New Fiduciary Investment Advice Exemption

The DOL proposed a new exemption from the prohibited transaction provisions of ERISA in connection with the provision of investment advice. The proposed exemption is the DOL's response to the vacatur of its prior fiduciary rule and reflects its desire to harmonize its approach with that of the Securities and Exchange Commission.

Source: Groom.com, July 2020

DOL Unveils New Fiduciary Rule Proposal

The DOL has finally unveiled its much anticipated fiduciary rule, though it's a mixed bag and has a certain "back to the future" feel, along with some new implications for recordkeepers, Pooled Employer Plans, and rollover advice. Titled "Improving Investment Advice for Workers & Retirees," the proposal -- and it's just that at this point -- proposes a new prohibited transaction class exemption that would be available for investment advice fiduciaries.

Source: Asppa.org, June 2020

Department of Labor Proposes New Fiduciary Rule

The DOL said that it will propose a new fiduciary standard based on a temporary policy put in place after the 5th Circuit Court of Appeals vacated the DOL's previous rule in March 2018, and it will now allow investment advice fiduciaries to receive certain forms of compensation once prohibited. The proposal would also allow investment advice fiduciaries to give "more choices for retirement using Impartial Conduct Standards."

Source: 401kspecialistmag.com, June 2020

DOL Takes Strong ERISA 401k, ESG Fiduciary Stance

It might be harder to "invest in your values" if a proposed rule form the Department of Labor goes through. The regulatory body announced Tuesday that ERISA plan fiduciaries may not invest in environmental, social and governance vehicles when an underlying investment strategy decreases return or increases risk to achieve non-financial objectives.

Source: 401kspecialistmag.com, June 2020

Fiduciary Obligations With Respect to a Brokerage Window

This article reviews two recent cases that considered claims by participants in 401k participant-directed investment plans that plan fiduciaries failed to prudently monitor investments in what fiduciaries claimed were brokerage windows or "similar plan arrangements." The article starts with a summary of what we know and what we don’t know about the legal status of brokerage windows and similar plan arrangements.

Source: Octoberthree.com, June 2020

Fiduciary Oversight of 401k Plans Is Vital During Uncertain Times

Plan Sponsors and those charged with the oversight of their 401k plan need to remain diligent in ensuring the safety of their participant's 401k accounts. Here are 11 items you need to make sure you're doing.

Source: Linkedin.com, June 2020

DOL Issues Guidance on 401k Plan Investments in Private Equity

The DOL seeks to alleviate ERISA fiduciary liability concerns, first by limiting the use of private equity monies to investment components within larger, heavily diversified funds and, second, by focusing on the prudence of the private equity investment selection process itself. By following these precepts, the DOL believes that fiduciaries "may offer an asset allocation fund with a private equity component...in a manner consistent with the requirements of Title I of ERISA."

Source: Compliancedashboard.net, June 2020

DOL Guidance on Private Equity Adds Flexibility for DC Plans

Department's views on the use of private equity investments within 401k and other DC plans. The Information Letter was issued to Groom Law Group on behalf of two of its clients and makes clear that 401k fiduciaries can prudently include private equity as a component of an ERISA plan's diversified investment option, such as a target-date fund. The letter provides a framework of important factors for plan fiduciaries to consider to demonstrate the prudence of such investments.

Source: Groom.com, June 2020

First Hints of Potential New DOL Fiduciary Rule Emerge

The DOL has filed for review a draft regulation with the Office of Management and Budget. The actual language of the proposed rule is not yet available, as it must first be analyzed by OMB, but sources are speculating that this proposal likely represents the DOL's new fiduciary rule and that the "exemption" referenced in the title of the rule will be related to the Regulation Best Interest package currently being implemented by the SEC.

Source: Planadviser.com, June 2020

Six Considerations for Plan Fiduciaries During the Covid-19 Pandemic

ERISA fiduciaries may want to identify steps they should be taking and decisions they should be considering to adjust their process in the face of the coronavirus pandemic. This article identifies six such points that could be appropriate for consideration by retirement plan fiduciaries, such as fiduciary committees, as the pandemic and related economic fallout continue to evolve.

Source: Morganlewis.com, May 2020

What's the Difference Between a File Clerk and a Fiduciary?

The author writes, "What's the difference between a file clerk and a fiduciary? Come June 30th, not much. A clerk is employed to perform menial office tasks. They're told what to do, have little or no discretion, and are not entrusted with critical decision-making. That may describe you in less than 45 days. The SEC's Reg BI is going to cause more harm than good. To illustrate, let's examine the concept of 'fiduciary' in 3D."

Source: 401kspecialistmag.com, May 2020

DC Plan Sponsor Fiduciary Torch Is Brighter and Can Help Light Dark Days

Defined contribution plan sponsors are putting more importance on their fiduciary duties, based on results from a recent survey. It also saw more plan sponsors turning to third parties for guidance as well as a growing appreciation for professional training and fee transparency. This is especially welcome news as sponsors face the disruption of their plans and their participants are grappling with market unsettledness caused by the coronavirus crisis.

Source: Alliancebernstein.com, April 2020

The Fiduciary Angle to the Participant COVID Certification Because of Spousal Employment Loss

The determination of whether or not an individual qualifies as a COVID participant would usually be a determination that requires the exercise of discretion by a fiduciary, under ERISA Section 3(21). But the CARES' participant certification rule adds an odd twist into the mix.

Source: Businessofbenefits.com, April 2020

How 401k Plan Sponsors Should Deal With the Rollercoaster Stock Market

When the stock market isn't doing well (such as now), many plan sponsors are paralyzed by panic as they realize that their retirement savings are being wiped out. As plan sponsors, you are a plan fiduciary. You can't afford to be paralyzed with panic. This article is all about how you can manage the rollercoaster stock market and properly manage your plan.

Source: Jdsupra.com, April 2020

Critical Qualified Plan Fiduciary Issues for Employers to Consider in Light Of Covid-19

With the business disruptions and market turbulence being wrought by COVID-19, many employers sponsoring qualified retirement plans are facing key decisions about their plans. Some of the most important fiduciary issues an employer may wish to consider in light of COVID-19 and depending on the type of qualified plan it sponsors are reviewed here.

Source: Benefitslawadvisor.com, April 2020

Minimizing the Risk of ERISA Litigation in a Turbulent Economic Climate

Based on past litigation experience, there are some types of investments that are considerably more likely to be the target of claims under ERISA. This article reviews these claims and also offers some thoughts on preventative measures that plan sponsors and fiduciaries can consider.

Source: Proskauer.com, April 2020

Lawsuits Reveal the Risk Issues for 403b and 401k Plan Fiduciaries

The underlying theme of that allegation charges executives and managers who hire the plans' service providers with insufficient oversight and breaches of their ERISA fiduciary duty. Hidden beneath the excessive fee complaint, however, are several risk issues that are consistently found to exist in the audits of fiduciary management systems.

Source: Rolandcriss.com, March 2020

Are You Looking for Missing Participants?

It's important to be diligent in monitoring the plan for uncashed checks or nonresponsive participants. The DOL has made it clear that this is a fiduciary duty of the plan sponsor. Service providers often can help identify accounts that may need special attention, so sponsors should coordinate efforts to establish proper procedures and designate an individual or team to ensure necessary follow-up efforts are taken.

Source: Findley.com, March 2020

Employer Actions for 401k Plans Sickened by Coronavirus

The realities of the Coronavirus pandemic have quickly and dramatically changed the way we work, shop, seek health care, and interact with each other. The employer sponsors of 401k plans and any employer-based fiduciary investment committees should consider taking steps now in response to these developments.

Source: Dickinson-wright.com, March 2020

COVID-19 Quarantine Question: How Should 401k Plan Sponsors Communicate to Employees Working From Home?

It's starting to happen. City by city, county by county, state by state, businesses are deciding to tell their employees to work from home. One of the disadvantages, however, is the lack of ease of communicating that exists when working proximity is reduced. You simply can't shut over the cubicle to get your coworkers attention. For retirement plan sponsors, communication is not merely a form of social interaction, it's a fiduciary duty. How does the change in work location impact this duty? And what can 401k plan sponsors do about it?

Source: Fiduciarynews.com, March 2020

Access to Retirement Plan Data: The Next Wave of Fiduciary Litigation?

As retirement plan administration has become more and more digitized over the years, retirement plan sponsors and recordkeepers have become the custodian of a variety of sensitive plan participant data. Often, this information can paint a very accurate picture of a plan participant's financial wellness and retirement strategy. The value of this information is not lost on certain vendors who collect and retain it, and the use of this data is the focus of an emerging area of retirement plan fiduciary litigation.

Source: Mmmlaw.com, March 2020

401k Plan Sponsors Fiduciary Duty in Light of Coronavirus Fear

Time will tell if the 2020 Coronavirus becomes virulent that created long-term buying opportunities for alert investors or if it is merely a repeat of the 2002/2003 SARS scare. There's no doubt both strains are deadly, and there's nothing wrong with preparing for the worst in terms of personal choices. Now is the time for 401k plan sponsors to seize their fiduciary mantle and provide the guidance and tools plan participants need to dodge emotional decisions that could ruin their chance for a comfortable retirement.

Source: Fiduciarynews.com, March 2020

Fiduciary Responsibility Unclear When Handling Participant Data?

Fiduciary responsibility has blurred-lines around the use of participant data. Can your vendors use participant data to sell participants other products and services? This practice is called cross-selling, and it became a big issue for company fiduciaries after it was raised in some 403b and 401k plan lawsuits. The new focus on this issue reflects growing worldwide concerns over data privacy, but the jury is still out on whether such cross-selling to plan participants violates ERISA.

Source: 401ktv.com, March 2020

Reasons Exist to Turn a Cold Shoulder to Company Stock in DC Plans

With the wave of stock drop litigation a decade ago, the offering company stock in defined contribution plans has decreased. But, should plan sponsors offer company stock as an investment option? Robyn Credico, North America Defined Contribution practice director at Willis Towers Watson in Arlington, Virginia, says -- from a participant and fiduciary risk perspective -- no.

Source: Plansponsor.com, February 2020

District Court Opines on Successor Fiduciary Liability

A recent case highlights the importance of paying attention to successor fiduciary liability when taking on a benefits plan. This case provides important color to the ERISA provision that prevents plan fiduciaries from facing liability for breaches that occurred before and after their tenure as a fiduciary responsible for the benefit plan.

Source: Hallbenefitslaw.com, February 2020

Fiduciary Duties: Tips For Managing Your 401k Plan

If you're a decision maker for your retirement plan, then you're a plan fiduciary. Some basic fiduciary duties include acting only in the interests of the plan participants and beneficiaries; acting prudently; paying reasonable and necessary plan expenses; following the plan documents; and diversifying plan investments. What do these duties look like from a practical standpoint, and how can you ensure you are meeting your obligations to the plan and its participants? Here are a few suggestions.

Source: Lindquistcpa.com, January 2020

Why Retirement Plan Advisers Should Act as 3(38) Investment Fiduciaries

A year ago, we reviewed 3(21) versus 3(38) ERISA investment fiduciaries and asked which was better. Now it seems clear that 3(38) is better, at least for advisers, and that rather than charge more or the same for acting as a 3(21) fiduciary, advisers should charge less. Here's why.

Source: Investmentnews.com (registration may be required), December 2019

Fiduciary Lawsuits Highlight Importance of Service Provider Agreement Legal Reviews

Fiduciaries and their legal counsel need to review both the agreements and fee structures they have with all service providers to ensure they are paying reasonable fees and there are no hidden fees or unexpected costs in the contracts. Regular review of both contracts and fees, as well as confirming payments align with these fees, is only part of the process.

Source: Hallbenefitslaw.com, November 2019

Retirement Plan Committee's Prudent Process Defeats DOL

A recently released case highlights the protection afforded by a retirement plan committee that takes its role seriously. In Scalia v. WPN Corp., a Pennsylvania federal court ruled that the U.S. Department of Labor was wrong in its insistence that retirement committee members were liable under ERISA for failing to monitor the committee's investment manager.

Source: Carltonfields.com, November 2019

Cybertheft of 401k Plan Assets - New Case Highlights Fiduciary Exposure

ERISA was enacted before the computer age, and it has never been amended or interpreted to impose a specific duty on plan fiduciaries to maintain appropriate cybersecurity protections. However, fiduciaries should not have their heads in the sand about this issue. The duties of prudence and loyalty will likely be interpreted to include a responsibility to keep plan assets safe from hackers. A lawsuit recently filed against Estee Lauder Inc, its 401k plan committee, recordkeeper and custodian highlights some security flaws in plan distribution procedures and has the potential to make new law in this area.

Source: Cohenbuckmann.com, October 2019

401k Plan Sponsors' Fiduciary Obligation to Former Employees

There is fiduciary ramification raised when former employees leave their money in their old company's 401k plan. At the very least, employers have a responsibility to educate their former employees regarding their choices and clearly explaining the impacts of each choice available. Also, fulfilling the obligations of a plan sponsor can increase administrative costs when it comes to ex-employees. They still need to provide the required notices and ultimately keep track of them if they have moved.

Source: Fiduciarynews.com, October 2019

Five Lessons Packaged Target-Date Solutions Can Learn From Customization

Selecting a target-date solution is a fiduciary act, and plan sponsors must work through the distinctions between custom and packaged approaches in order to decide which is the better fit for participants in their own plans. However, the choice isn't necessarily black and white. Here are five principles that can raise the bar for packaged target-date solutions.

Source: Alliancebernstein.com, October 2019

401k Fiduciary Litigation -- Still Chaotic

Michael Barry, president of O3 Plan Advisory Services LLC, discusses how differing views by courts in various ERISA cases results in no clear guidance.

Source: Plansponsor.com, October 2019

Top 10 Fiduciary Misconceptions Among 401k Plan Sponsors

While mistakes may result in fines and penalties, misconceptions can lead to bad results for the organization and its employees. Bad advice from a plan sponsor's trusted third party, whether intentional or negligent, can produce inertia and a lack of trust in the entire system. Here are the top 10 fiduciary misconceptions based on importance or what is most common.

Source: Investmentnews.com (registration may be required), September 2019

Three Lessons for Advisers From 401k and 403b Class Action Settlements

Retirement plan committees and financial advisers need to pay attention to class-action litigation and settlements to better manage their fiduciary risks. Some of the claims in those lawsuits are obvious; others foreshadow emerging issues that warrant attention and, at the least, an analysis of plan practices.

Source: Fredreish.com, September 2019

Nineth Circuit OKs Arbitratration for ERISA Fiduciary Breach Cases

ERISA plans can require resolving fiduciary breach cases through arbitration, a three-member panel of the 9th US Circuit Court of Appeals has ruled, citing recent Supreme Court decisions as nullifying the circuit's 35 years of precedent. Some observers are hailing the decision as creating a path for employers to resolve ERISA fiduciary breach claims without going to court. However, employers considering adding mandatory arbitration provisions to their plans should consult with legal counsel to better understand the potential impact of these provisions.

Source: Mercer.com, September 2019

Limit Lawsuit Risk by Staying Apprised of the Current 401k Legal Setting

As fiduciaries, plan sponsors should keep aware of the current legal setting around 401(k) plans. If applicable, sponsors should take steps to avoid the risk of facing similar lawsuits. A recent case deals with using the lowest cost index fund available.

Source: Riverandmercantile.us, September 2019

401k Fiduciary Responsibility and Mutual Fund Fees

Fiduciaries often are aware of administrative and disclosure requirements, but sometimes become negligent when choosing funds with reasonable fees. Even those who are aware can inadvertently fail to select the best mutual fund. While 401k fees have decreased in recent years because of litigation and various DOL regulations, mutual funds can still charge indirect fees that DOL would deem unreasonable. Unfortunately, fiduciaries with little knowledge regarding fee structures may authorize a plan to charge fees, decreasing participant balances.

Source: Forbes.com, September 2019

Retirement Plan Fiduciarys: Don't Fly Solo

For those who aren't experts in employee benefits law, plan administration or investments, fiduciary responsibilities may seem daunting. The multitude of administrative as well as investment duties can and often does trip up plan sponsors. But with the wide availability of fiduciary services, there is no need to fly solo in running a retirement plan.

Source: Massmutual.com, August 2019

The Emerging Best Interest and Fiduciary Duty Patchwork

This year has seen a number of fiduciary and best interest investment advice regulations at both the federal and state levels. Firms subject to these regulations will face challenges in dealing with rules that will impose a host of new obligations, and that may overlap and conflict with one another. This chart is intended to help firms take stock of the evolving framework and aid firms in putting the pieces together.

Source: Eversheds-Sutherland.com, August 2019

Plan Administrator Deemed an ERISA Fiduciary

The Fourth Circuit Court of Appeals, in Dawson-Murdock v. Nat'l Counseling Group, Inc., has allowed a life insurance beneficiary to sue her husband's employer for breach of fiduciary duties concluding that she had sufficiently alleged that the employer was an ERISA fiduciary.

Source: Wagnerlawgroup.com, August 2019

Schlichter Says Retirement Savings "Squandered" in Quid Pro Quo

The law firm of Schlichter Bogard & Denton, LLP filed papers opposing a motion by fiduciary defendants of the MIT Supplemental 401k Plan for a summary judgement in the suit initiated in 2016 as one of the first university excessive fee cases. Not only did they file papers, they issued a press release, drawing attention not only to the filing, but to an allegation made in the initial suit -- one that distinguishes it from the nearly two dozen such cases filed and fought over the past three years -- that there was a quid pro quo between MIT and Fidelity, the plan's recordkeeper.

Source: Napa-net.org, August 2019

What Is a VFCP?

The DOL allows plan fiduciaries (including employers, plan officials, and parties in interest) to voluntarily comply with ERISA by self-correcting certain fiduciary breach violations under its Voluntary Fiduciary Correction Program ("VFCP"). Nineteen categories of transactions are eligible for correction under the VFCP, and the DOL has issued guidance explaining acceptable methods of correction and providing examples.

Source: Boutwellfay.com, August 2019

This is How 401k Plan Sponsors Get Education Answers to These Three F-Words

Most plan sponsors have a pretty good handle on the benefits of having a diversified fund lineup. With the investment side of things long ago taken care of, 401k plan sponsors have a renewed focus on the three F-words of offering employee retirement benefits: Fiduciary, Fees, and Financial Wellness. Here's how plan sponsors answer questions related to each of these three F-words.

Source: Fiduciarynews.com, July 2019

How Much (Should) a New Retirement Plan Committee Member Know?

A recent federal court decision should remind us all of the importance of plan committee education. The case involved a suit by participants in the SunTrust 401k plan that challenged the initial selection of, and subsequent acquiescence with, an ostensibly imprudent plan investment menu. The court's decision focused on one aspect of the case: the liability of "new" plan committee members for actions that predated their involvement on the committee but continued after their involvement.

Source: Napa-net.org, July 2019

How Not to Hire an ERISA Auditor

Selecting an auditor for an ERISA plan is one of those fiduciary responsibilities which has been a continuing concern of the Department of Labor. If you are a plan sponsor with that fiduciary responsibility, here are a few mistakes to avoid in the auditor selection process.

Source: Retirementplanblog.com, July 2019

Is Fiduciary Responsibility Retroactive?

A federal judge has weighed in on a question relevant to new plan committee fiduciaries: When and how does their liability for the decisions of previous committee members begin?

Source: Napa-net.org, July 2019

ERISA Litigation's Next Big Thing

While there are many prudence and cost-efficiency related issues relating to variable annuities overall, an emerging issue involves the plan sponsor’s ability to carry out its fiduciary duties under ERISA. Variable annuities usually include numerous sub-accounts as investment options. This increases the odds of finding sub-accounts that are not prudent and need to be removed.

Source: Iainsight.wordpress.com, July 2019

Study Finds That Determination of Fiduciary Breach Often Hinges on Whether Fiduciary Followed a Prudent Process

The Center for Retirement Research at Boston College recently released a study outlining the major causes of 401k lawsuits. In particular, the study focuses on the fact that these types of lawsuits often hinge on whether the plan fiduciary was following a "prudent" process and how one would define a process as prudent. With most companies now offering 401k plans as their primary retirement offering, it's wise to pay attention to the major findings and engage ERISA counsel to guide implementation of a fiduciary legal compliance paradigm to mitigate exposure to these costly lawsuits.

Source: Hallbenefitslaw.com, July 2019

SEC's New Broker Rule: Issues for Plan Fiduciaries

This article considers how the SEC's new, detailed, and significantly higher standard of conduct rules for brokers may affect plan sponsor fiduciaries. In light of the new (and significantly elevated and detailed) broker standard of conduct rules, the application of the plan fiduciary's duty to monitor "whether the adviser continues to meet applicable federal and state securities law requirements" deserves special attention.

Source: Octoberthree.com, June 2019

3(21) vs. 3(38) Fiduciary: An ERISA Attorney Breaks It Down

Company fiduciaries have a duty to seek professional help with investments if they need it. An ERISA attorney who's spent over 35 years helping hundreds of 401k plan sponsors explains the choices and decision issues.

Source: Forusall.com, June 2019

Retirement Plan Committees: Consider Investment Trends

Plan fiduciaries and retirement plan committees would do well to consider the trends in the ways that retirement plan funds are invested and the behaviors and attitudes of plan participants, recommends a recent analysis.

Source: Ntsa-net.org, June 2019

The Fiduciary Duty to Investigate Conflicts-of-Interests with "Zero" and "Negative" Fee Funds

It started as an oddity last year when Fidelity loudly proclaimed they would begin offering "Zero" fee funds. Now the SEC has approved a "Negative" fee fund. A diligent fiduciary will nonetheless seek to kick the tires most thoroughly on "Zero" and "Negative" fee funds. It starts by analyzing the very motivation behind these financial product marketing innovations.

Source: Fiduciarynews.com, June 2019

Can Employees Release ERISA Fiduciary Breach Claims?

Plan fiduciaries looking to avoid protracted court cases filed by their plan participants are trying to develop the best fiduciary practices. They are also considering other options to control or restrict litigation, including trying to require mandatory arbitration of ERISA claims, seeking to designate a specific court to hear cases, and setting shorter periods to file claims for benefits in their plan documents. The courts are still trying to define the extent to which there are limits on these practices. However, a recent court case highlights an additional option, obtaining releases from terminating employees that cover ERISA fiduciary breach claims.

Source: Cohenbuckmann.com, May 2019

401k Plan Sponsors Can Minimize Their Liability in Eight Easy Steps

When 401k plan sponsors are told about their duties in operating the plan, they zone out. So here is a breakdown of what plan sponsors need to know in order to curb their potential liability as a plan sponsor. They can minimize their liability by just following these eight easy steps.

Source: Jdsupra.com, May 2019

The Emerging Best Interest and Fiduciary Duty Patchwork

By all accounts, 2019 will see the advancement of a number of fiduciary and best interest investment advice regulations at both the federal and state levels. Firms subject to these regulations will face challenges in dealing with rules that will impose a host of new obligations, and that may overlap and conflict with one another. This 6-page chart is intended to help firms take stock of the evolving framework and aid firms in putting the pieces together.

Source: Sutherland.com, May 2019

Business as Unusual: Fiduciary Do's and Don'ts

In the marketplace, it's normal -- even expected -- that firms extend more favorable terms and/or discounts to those who do business with them across various offerings. But those "normal" practices can cause you trouble when it comes to doing business with ERISA-governed plans.

Source: Ntsa-net.org, May 2019

Why Plan Sponsors Should Send Their Committee Members to School

Failure to understand how they must operate exposes fiduciaries and plan sponsors to lawsuits. It also hurts participants who may have a plan that isn't run properly and has poorly performing and expensive investments. While there isn't any legal requirement that committee members have fiduciary training, Department of Labor auditors will ask about it. They also view training as an indication that the members take their responsibilities seriously.

Source: Penchecks.com, May 2019

Including ESG Funds in a 401k Plan Fund Menu -- Fiduciary Considerations

There is a growing interest in including funds that emphasize environmental, social, and governance factors in 401k plan investment menus, in response (in part at least) to participant interest in these funds and the increased participant engagement they generate. What issues does inclusion of an ESG fund in the plan's fund menu raise for plan fiduciaries?

Source: Octoberthree.com, May 2019

401k Mutual Funds -- Pay Attention to Share Class

Mutual fund companies usually make their funds available to 401k plans in multiple share classes. While all classes hold the same underlying securities, they can charge very different fees. In general, employers have a fiduciary responsibility to choose the lowest-priced share class available to their 401k plan so participant investment returns aren't reduced unnecessarily by avoidable fees. To meet this fiduciary responsibility, employers must be capable of evaluating share class fee differences.

Source: Employeefiduciary.com, May 2019

Participant Loan Leakage: Protecting Participant Accounts and Reducing Fiduciary Risks

Plan sponsors may have a false sense of security when it comes to the fiduciary risk related to 401k loans. What they may not recognize is that participant loans are plan investments and must be managed with the same prudence and oversight required for any plan investment. The risk is heighted by several factors: the increased focus on 401k plans as a source of litigation; an alarming rate of loan defaults, as reflected in academic and industry studies; and a misguided belief that disclosure provides adequate protection. This 6-page paper explores these issues.

Source: Loaneraser.com, April 2019

Tussey v. ABB Closes With $55 Million Settlement; Complex Case Changed Views of Fees, Fiduciary Duty

Tussey v. ABB, after winding through earlier settlement awards to the plaintiffs, two appellate hearings in the 8th Circuit, and double rejections by the U.S. Supreme Court, ultimately will be remembered both as a case about plan sponsors' fiduciary duties and one that defined how to quantify participant losses from related breaches. As a result, the retirement plan industry has moved in a unified way to press for reductions in service provider fees, opt for lower-cost share classes, and insist upon greater transparency for recordkeeping and asset management costs.

Source: Blr.com, April 2019

Payroll Is a Fiduciary's Trojan Horse

Changes in the enforcement focus of the Internal Revenue Service and the U.S. Department of Labor place payroll operations high on the list of fiduciary functions that employers must monitor with great care. The financial penalties and reputational harm caused by payroll failures can be costly and damaging to enterprises that sponsor 401k and 403b retirement plans.

Source: Rolandcriss.com, April 2019

Impact of Executive Order on ESG, Proxy Voting May Be Muted

The White House issued an executive order on the evolving topic of proxy voting and environmental, social and governance investing programs being put into practice by retirement plans subject to ERISA. One ERISA expert says fiduciaries already evaluating ESG risks and those being active in proxy voting will continue parsing whatever ad hoc disclosures are volunteered by companies.

Source: Planadviser.com, April 2019

Pay to Play Lawsuits -- Issues for Plan Sponsors

After briefly reviewing current "pay to play" litigation, the article takes up the question, "do these arrangements pose an ERISA prudence challenge for sponsor fiduciaries?" Bottom line: as with other 401k fee litigation, the key question is likely to be, is the plan overpaying for these services? And the answer to that question is likely to turn on the issue of fair market value and the cost of alternative solutions.

Source: Octoberthree.com, April 2019

Emerging Trends in 401k and 403b Fund Menus

Given the shift in participant mindset and demographics, it's important for retirement plan committees to re-think the traditional approach to designing plan investment menus. Article discusses the strategic outcomes fiduciaries should be focused on when designing a fund lineup for their plan.

Source: Greenspringadvisors.com, March 2019

Five Areas Where Target-Date Funds Increase 401k Plan Sponsors' Fiduciary Liability

For all their convenience, for all their popularity, the increased reliance on TDFs does not necessarily shield the 401k plan sponsor. The author spoke to corporate retirement plan advisers from across the country. They identified five ways TDFs expose plan sponsors to fiduciary liability.

Source: Fiduciarynews.com, March 2019


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