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.
You know that old saying that when you assume... well, that applies double (and then some) to ERISA plan fiduciaries. In this podcast, Nevin Adams and Fred Reish discuss five bad assumptions with reminders about how to avoid winding up in trouble.
Source: Napa-net.org, September 2022
Fiduciaries are not responsible for delivering the absolute best investment performance. They are responsible for following a prudent decision-making process that is reasonable and well-documented, and for making decisions with the best interest of participants in mind. Focusing primarily or solely on past investment returns could result in several fiduciary mistakes noted here.
Source: Conradsiegel.com, September 2022
The Supreme Court's Hughes v. Northwestern University holding has already revealed its expected impacts: (1) retirement plan fee lawsuits are more likely to survive a motion to dismiss; and, as a result (2) retirement litigation continues to accelerate. A recent collection of litigation activity provides another opportunity for plan fiduciaries to identify helpful protective steps and best practices.
Source: Qualifiedplanadvisors.com, September 2022
There's an old saying that when you assume... well, here are some assumptions that can create real headaches for retirement plan fiduciaries.
Source: Napa-net.org, August 2022
Morningstar's Active/Passive Barometer is a semiannual report that measures the performance of active funds against comparable passive funds. Over the years, the report has found that most active funds underperform their passive counterparts and that higher-cost funds are more likely to underperform. This article reviews what 401k fiduciaries can take from the report.
Source: Employeefiduciary.com, August 2022
These amendments would significantly impact entities that rely on the QPAM Exemption, as well as plans, plan fiduciaries, counterparties to transactions involving QPAMs, and others. The amendments would impose significant compliance burdens and costs on QPAMs, including the need to amend existing agreements to comply with the conditions. Additionally, the indemnification and hold harmless provisions are likely to increase the potential liabilities of a QPAM that becomes disqualified.
Source: Fiduciarygovernanceblog.com, August 2022
The DOL is pushing back against litigation challenging specific elements of its FAQs regarding the fiduciary rule. The suit (Am. Sec. Ass’n v. U.S. Dep't of Labor) was one of two filed earlier this year challenging the DOL's PTE 2020-02. While both were filed on behalf of individuals whose businesses were detrimentally impacted by the expanded definition of fiduciary, specifically in this case in FAQs issued after the regulation. The suit alleged that the Labor DOL regulated via the FAQs, rather than going through the standard, required, notice and comment period.
Source: Ntsa-net.org, July 2022
Several recent lawsuits brought under ERISA have addressed the issue of which retirement plan participants have "standing" to bring an ERISA action against their plan's fiduciaries. These cases generally focus on the issue of whether the participant-plaintiffs who brought the suit have a "concrete stake" in the dispute, as in two recent cases involving participant-plaintiffs in 401k-type defined contribution plans who did not invest in all the funds for which they are suing. Fiduciaries should consider who would have a stake in litigation.
Source: Shrm.org, June 2022
Bitcoin in 401ks would test the prudence standard of the Employee Retirement Income Security Act, a lawyer said. Plan sponsors that allow cryptocurrency in their 401ks could be exposing themselves to a "very serious risk of a fiduciary breach."
Source: Wagnerlawgroup.com, June 2022
Eleanor has operated her fledgling business, The Good Place, for about seven years. She established a 401k plan somewhere around year two at the recommendation of her CPA. The CPA set up the plan for her with a bundled service provider. Whatever the CPA put on the paperwork (without ever discussing it with Eleanor), was how the Plan was established and how it remains. Relying on her payroll manager to just keep the contributions flowing, Eleanor was very pleased with herself. But, the Good Place gets randomly chosen by the DOL for a fun-filled investigation. In reading over the DOL letter from the investigator, Eleanor is baffled by half of the requested items and calls her CPA.
Source: Ferenczylaw.com, May 2022
If you aspire for an appointment to serve on your employer's committee that oversees its retirement, pension, and health plans, you are in a select company. Surveys reveal that few managers and executives who serve on these committees sought their appointment. But let's say that you are appropriately ambitious and would enjoy cracking the circle of an elite group of managers by gaining assignment to your enterprise's fiduciary committee. What do you need to know?
Source: Rolandcriss.com, May 2022
The 2022 Qualified Plan Fiduciary Summit connected plan sponsors with retirement industry thought leaders, advisors, recordkeepers, ERISA attorneys, money managers, and other service providers. This article recaps the key themes from the event and items for plan fiduciaries to consider as they navigate a challenging labor market, an active litigation and regulatory environment, and increased employee needs and expectations.
Source: Qualifiedplanadvisors.com, May 2022
Plan sponsors offering bitcoin in-plan as part of the core investment menu would expose the plan, investment committee, and plan participants to myriad risks, says Jerry Schlichter, managing partner at Schlichter Bogard & Denton, who has made a practice of suing plan sponsors for fiduciary breach. Plan sponsors could be vulnerable to greater litigation risks from the plaintiffs' bar, he explains. Plan sponsors immediately checked with their plan adviser to know if there is any potential cryptocurrency exposure.
Source: Planadviser.com, April 2022
Cryptocurrency. The word brings up thoughts of potential wealth, mystery, and hi-tech. It's the sexy new kid on the block for a new generation of investors. It's one of the current hot topics in the 401k plan industry. It also brings a lot of questions and investment risks. Despite these questions and risks, the popularity of wanting cryptocurrency investments in 401k plans is growing. Before plan fiduciaries think about adding crypto to their 401k plan, they need to consider the three risks and issues reviewed here, which far outweigh any potential benefits to the plan participants.
Source: Linkedin.com, April 2022
Litigation arising from the management of employee benefit plans has increased dramatically in recent years notably "excessive fee" litigation. New federal laws, regulations, guidelines, and established case law are expected to escalate the risks in 2022 and beyond. What should you do from an insurance perspective?
Source: Fiducientadvisors.com, April 2022
Recently, the DOL issued new guidance regarding the holding or investing in cryptocurrency by 401k retirement plans. This new guidance specifically impacts retirement plans that permit participants to use self-directed brokerage accounts to trade individual stocks on their own. Under the new guidance, employers could have fiduciary responsible for participant cryptocurrency trades made through their self-directed accounts.
Source: Graydon.law, April 2022
401k conflicts of interest misalign the interests of employers and 401k providers. While employers have a fiduciary responsibility to choose a 401k provider with "reasonable" administration fees and cost-efficient investments to make retirement as affordable as possible for plan participants, conflicted 401k providers have a financial incentive to push overpriced administration services and investments when lower-priced - but otherwise comparable - alternatives are available. How do employers avoid this trap? Here are four ways a 401k provider can profit unduly at the expense of plan participants.
Source: Employeefiduciary.com, April 2022
Cryptocurrencies have been promoted and have garnered significant attention in recent years as innovative investments that offer unique potential for outsized profits, but it's the opinion of the Department of Labor and many investment professionals that the potential pitfalls associated with these investments are not widely understood or appreciated by investors.
Source: Schneiderdowns.com, March 2022
According to CAR 2022-01, the DOL's concerns about the prudence of a fiduciary's decision to expose a 401k plan's participants to direct investments in cryptocurrencies or other products whose value is tied to cryptocurrencies stem from the significant risks of fraud, theft, and loss that have been endemic to these asset classes at least as of this early stage in their evolution. CAR 2022-01 elaborates on several aspects of cryptocurrencies that are at the heart of the DOL's apprehensions.
Source: Ropesgray.com, March 2022
Are plan fiduciaries protected from excessive fee lawsuits just because they offer participants a menu of investment funds that includes some low-fee investment choices? Or are plan sponsors and other fiduciaries required to do more than that? The answer to these questions may determine whether an excessive fee lawsuit is dismissed quickly and before an expensive, time-consuming trial.
Source: Penchecks.com, March 2022
To help increase awareness and understanding about basic fiduciary responsibilities when operating a retirement or health benefit plan, the Department of Labor is presenting the "Getting It Right – Know Your Fiduciary Responsibilities" webcast series. The three-part series will help employers and service providers understand how the fiduciary responsibility provisions of ERISA apply to employer-sponsored retirement and health plans and provide information about how to avoid common problems in managing a plan.
Source: Planadviser.com, March 2022
What the DOL's new ESG rule doesn't do is solve the real problem with ESG, namely that there's no consensus on what it means. This can have ramifications for plan sponsors and all 401k fiduciaries. Because of this, many are asking, will fiduciary liability increase?
Source: Fiduciarynews.com, March 2022
The Supreme Court recently handed down its eagerly-awaited decision in Hughes v. Northwestern University. Plan sponsors and 401k and 403b plan administrators had hoped the decision would create clearer pleading standards to free them from the endless line of ERISA class actions alleging fiduciary malfeasance when selecting investment menus and plan service providers. It didn't and now those fiduciaries have some more thinking to do.
Source: Cohenbuckmann.com, March 2022
CAPTRUST's Drew McCorkle enlightens readers on the attention cybersecurity is receiving at the DOL, the ways new cases, decisions, and settlements are impacting the fiduciary insurance market, and what changes to look out for regarding annual financial statement audits required for all plans with more than 100 participants.
Source: Captrust.com, February 2022
The decision in Hughes makes clear that merely providing investors with a broad menu of investment options does not excuse a fiduciary's allegedly imprudent decisions. A retirement plan that includes prudent investment options alongside imprudent options may be insufficient because a fiduciary must protect investors by continually monitoring and removing those imprudent investments. This duty is not discharged simply because investors have the choice to select their investments.
Source: Paulweiss.com, January 2022
For most employers, January kicks off a brand new 401k plan year. Now that all of the year-end plan amendments, participant notices, and new deferral elections are behind you, this is a great time to take a step back and look at the big picture for your 401k plan's governance and decision-making process and make sure your 401k plan decision-makers are properly authorized to make those decisions.
Source: Foley.com, January 2022
In response to questions and reactions that the DOL received from a range of stakeholders regarding the 2020 Letter, as well as a Risk Alert that the SEC issued in June 2020 regarding compliance issues for managers of private equity and hedge funds, the Supplemental Statement advised that the 2020 Letter should not be "misread . . . as saying that PE -- as a component of a designated investment alternative -- is generally appropriate for a typical 401k plan." So how did we get here, and what does this mean?
Source: Erisapracticecenter.com, January 2022
SAS 136 transfers a significant amount of liability for an audit's accuracy from an auditor to a plan's fiduciaries. SAS 136 intends to enhance the quality of audits of ERISA plans by adding new procedures to CPAs' audits beginning December 15, 2021. The burden for producing the added plan-related documentation required will likely fall to employers' human resources departments.
Source: Rolandcriss.com, January 2022
The DOL recently issued year-end relief to investment advice fiduciaries with its release of Field Assistance Bulletin No. 2021-02 on October 25, 2021. Previously, the DOL adopted Prohibited Transaction Exemption 2020-02 on December 18, 2020, which set forth several requirements that financial institutions and investment professionals must satisfy when providing fiduciary invest. advice, including advice to roll over a retirement plan account into an Individual Retirement Account. Although PTE 2020-02 became effective February 16, 2021, interim transitional relief delayed its effective date through December 20, 2021. The Notice further extended transitional relief to as late as June 30, 2022.
Source: Olshanlaw.com, December 2021
On November 16, 2021, the United States District Court for the Northern District of California rendered its decision in In Re Linkedin ERISA Litigation, granting in part/denying in part defendants' motion to dismiss. Among other issues, Linkedin involves a claim that Linkedin plan fiduciaries breached their duty of prudence by selecting/retaining an "underperforming" target-date fund. This sort of claim is being brought more frequently by plaintiffs' lawyers in 401k breach-of-duty-of-prudence litigation. This article discusses the court's decision on this issue.
Source: Octoberthree.com, December 2021
This article will help employee benefit plan fiduciaries better understand their responsibilities and manage the risks of non-compliance with ERISA requirements. The general approach to handling risk is a cycle of identifying, assessing, controlling, and reviewing controls over risks. Based on the assessment of a given risk, there are four ways to manage it: you can avoid, reduce, transfer, or accept the risk.
Source: Berrydunn.com, December 2021*
Increasing retirement plan-focused litigation has put insurance carriers and fiduciary service providers in difficult positions. In this article published in PLANSPONSOR, McDermott Partner Erin Turley said such litigation continues to be a "major focus" in the fiduciary insurance marketplace. "It is a challenging market right now, to the point that we are looking at trying to think about ways that insurance products might be differently structured, to address what we hope will only be a short-term tightening in the market."
Source: Mwe.com, December 2021
There is nothing a plan sponsor or ERISA fiduciary can do to prevent allegations of a fiduciary breach. However, there are many things they can do to be prepared to rebut such claims. Two recent fiduciary victories provide valuable insights into how a court would evaluate the decisions and processes of plan committees.
Source: Spotlightonbenefits.com, November 2021
On October 25, 2021, the DOL issued Field Assistance Bulletin 2021-02, temporarily extending its non-enforcement policy regarding certain rules applicable to fiduciaries who provide investment advice for 401k plans, per Prohibited Transaction Exemption 2020-02, released in December 2020. The temporary non-enforcement policy now extends generally through January 31, 2022; it was originally set to expire on December 20, 2021.
Source: Compliancedashboard.net, November 2021
Should a 401k plan sponsor take on the additional fiduciary liability associated with retirees? Deciding whether to encourage participants to leave account balances in the plan through retirement should not be based solely on considerations like accumulation of assets in the plan, the offsetting of administrative fees, and the ability to offer very low-cost funds. Using only these factors may lead to unexpectedly difficult questions with no clear answers. Thus, when contemplating whether to encourage participants to leave account balances in the plan, consider the questions outlined here.
Source: Keightleyashner.com, November 2021
With ERISA lawsuits alleging negligence and mismanagement on the rise, fiduciary liability insurance is a critical component of managing a retirement plan. However, experts say settlements in the tens or hundreds of millions of dollars are forcing insurers to institute dramatic premium increases. Some carriers are hesitant to offer such coverage at all. This article investigates the risks associated with fiduciary responsibility, the need for fiduciary liability insurance, and ways employers can secure coverage and reduce the likelihood of litigation.
Source: Captrust.com, October 2021
Employers that sponsor a retirement plan should be concerned with the risk of excessive fee claims, as the number of these has skyrocketed recently. Chubb's Alison Martin shares steps plan fiduciaries can take to reduce the chances of a lawsuit or increase their chances of successfully defending against one.
Source: 401kspecialistmag.com, October 2021
Recent Court Decisions Extend the Statute of Limitations for Breach of Fiduciary Duty Lawsuits Under ERISA
The U.S. Supreme Court's decision in Sulyma and reliance on that decision by the District Court in the Bowers case have significantly weakened the three-year statute of limitations defense for fiduciary breach cases based on actual knowledge of a breach. In light of these decisions, plan fiduciaries should take actions outlined here to foreclose fiduciary breach suits and make the strongest possible case to have a fiduciary breach suit dismissed.
Source: Verrill-law.com, September 2021
The GAO tested participant understanding of some sample fee disclosures, and the results were disappointing. Almost a decade after the DOL fee disclosure regulations became effective, it is clear that they are failing in their intended goal of demystifying retirement plan fees. Without waiting for the DOL to act, plan fiduciaries can implement the GAO recommendations and insist that their participants get disclosures that clearly provide the essential information they need to make investment decisions.
Source: Rpaconvergence.com, September 2021
Plan sponsors should work with their recordkeeping partners to understand their ability to regularly audit plan census information and to search for missing participants. Determining which steps to take should incorporate a review of ERISA's fiduciary duties, including the duties to act with care, skill, prudence, and diligence, along with the privacy concerns of social media or beneficiary outreach.
Source: Callan.com, September 2021
Benefit plan sponsors and plan fiduciaries should take note and act quickly. The Department of Labor has issued a new cybersecurity guidance package with far-reaching effects and has already begun including this in its enforcement efforts.
Source: Poynerspruill.com, September 2021
The expertise and overall fitness of your organization's retirement plan committee are dependent upon their level of training: in this case, fiduciary training. Find out who should be included in this training, what it should cover and why, and how often fiduciary training should take place.
Source: Francisinvco.com, September 2021
Now is a great time to dust off your company's ERISA fiduciary liability policy to ensure your plan fiduciaries have robust, comprehensive coverage. Fiduciary liability policies provide coverage for claims related to the administration and operation of retirement and health and welfare plans. Unlike D&O coverage, fiduciary liability policies rarely get much attention but can similarly provide significant protection to a company's Board or other plan fiduciaries.
Source: Benefitslawadvisor.com, September 2021
It's important to understand that the signer of Form 5500 is considered a plan fiduciary who has potential personal liability for the compliant administration of the 401k plan. This includes being responsible for the accuracy of the information contained on Form 5500. Accuracy is important not only because it's part of operating compliantly but because errors on Form 5500 can raise a red flag for the IRS or the DOL and could trigger an audit.
Source: Alliant401k.com, September 2021
In this article, CAPTRUST's Drew McCorkle dishes out the latest in fiduciary updates for the third quarter of 2021. Read on for a rundown of a fee litigations case the Supreme Court is considering, the use of ESG investments in 401k and other individual account retirement plans, why inherited 401k accounts are protected from creditors, and more.
Source: Captrust.com, August 2021
Fiduciary duties must be fulfilled. But some are often overlooked, an industry expert warns. "When a job becomes too familiar it's easy to start taking things for granted," writes Christopher Carosa in Fiduciary News. He adds that the belief that a plan can run itself if "the right pieces" are in place is "a dangerous misperception." Advisors may find Carosa's identification of overlooked duties useful in serving their clients.
Source: Asppa.org, August 2021
As the plan sponsor, it's your fiduciary responsibility to make sure your plan funds reflect the best interests of your participants. This usually requires regular monitoring of your investment fund menu and making updates as you see fit. With that in mind, here are three signs it may be time to add or replace investment options in your company's retirement plan.
Source: Planpilot.com, July 2021
This piece is about plan sponsors who don't insure their risk by buying fiduciary liability insurance or buying a plan service that could review their plan expenses and/or their plan document/administration. Fiduciary liability insurance helps protect plan sponsors who find themselves also appearing as defendants in a plan lawsuit filed by an aggrieved plan participant in a town near you.
Source: Jdsupra.com, July 2021
The role of retirement plan governance has become increasingly important as employers face increased scrutiny of how they operate their 401k plans in the current legal and regulatory environment. CFOs and human resource managers administering 401k plans and serving on 401k plan committees have increasingly been held responsible for fiduciary breaches. Plan fiduciaries should conduct due diligence to reprice services and replace underperforming funds given asset-based fees and significant growth in plan size, due to rising markets and recurring contributions.
Source: Cpajournal.com, July 2021
There are 17.5 million men and women who have the legal responsibility for managing the assets of pension plans, foundations, endowments, health and welfare plans, and personal trusts. These "lay fiduciaries" generally come from outside the financial services industry, usually don’t get paid for their fiduciary jobs, and have little, if any, training on what the law requires of them in managing more than $26.6 trillion of our investments.
Source: Businesswire.com, July 2021
As a result of confusion and manipulation by certain credit rating agencies during the financial crisis of 2008, the Dodd-Frank Wall Street Reform Act blocked the use of credit ratings for exemptions from prohibited transactions. Now the DOL announced it will reopen the comment period on proposed amendments to six class exemptions from prohibited transaction rules related to Dodd-Frank's credit rating prohibition.
Source: 401kspecialistmag.com, June 2021
Retirement plan sponsors need to be knowledgeable about their investment lineups and deliver documentation to the DOL and IRS on time. Most retirement plan committee members already know this. However, there are some things that advisers and consultants wish their sponsor clients were better at, or that they prioritized more.
Source: Plansponsor.com, June 2021
CITs are often less expensive to create/maintain and may be more flexible than their mutual fund counterparts given that they are subject to a different regulatory framework. While this may be a benefit to their fee structure, it can also be challenging because CITs often suffer misconceptions when compared to mutual funds. This article reviews some of the most common misconceptions and frequently asked questions by fiduciaries.
Source: Manning-Napier.com, June 2021
The world of retirement plan administration can be summarized as good news, bad news, and some downright ugly news plan sponsors need to know. This 4-page paper outlines a path to excellence through a retirement plan operational review. Find out what an operational review is, the steps it entails, and the benefits of the process.
Source: Francisinvco.com, May 2021
Legislation is afoot that would amend ERISA to expressly permit fiduciaries to account for environmental, social, and governance factors as part of their fiduciary duties. Meanwhile, President Biden just issued an Executive Order on Climate-Related Financial Risk, in which he directed the DOL to consider proposing by September 2021 a rule that would suspend, revise or rescind the Financial Factors and proxy voting rules promulgated under the Trump Administration.
Source: Fiduciarygovernanceblog.com, May 2021
Employers have a fiduciary responsibility to ensure the fees paid by their 401k plan are "reasonable" so excessive fees do not reduce the investment returns of plan participants needlessly. To do that job, employers should benchmark their 401k fees periodically by comparing them to industry averages and/or the fees charged by competing 401k providers. Sounds straightforward, but this information is hard to find and often harder to compare on an apples-to-apples basis.
Source: Employeefiduciary.com, April 2021
In a complicated case that a federal judge acknowledged "...presents interesting issues about what it means to be an ERISA fiduciary under the circumstances presented," Principal Life once again fended off fiduciary claims regarding the operation of its PFIO offering.
Source: Napa-net.org, April 2021
Last week marked a key development in the nascent and still evolving body of case law addressing the status of 401k plan participant data as an ERISA "plan asset." The U.S. District Court for Southern District of Texas granted Fidelity Investments' dismissal motion in Harmon v. Shell Oil, based on the Court's inability to draw a conclusion that plan participant data is a "plan asset," the exercise of control over which would give rise to fiduciary responsibility (and potential liability) under ERISA.
Source: Groom.com, April 2021
SCOTUS is currently deciding whether to hear the Hughes v. Northwestern University 403b case. The key issue in the case is an allegation of fiduciary breach by the plan concerning the level of the plan's fees. A number of large financial services firms have recently sold their 401k/403b divisions. Could a possible explanation be concern over a possible review and adverse decision by SCOTUS? Could the humble arithmetic and simplicity of the Active Management Value Ratio metric be a contributing factor in these decisions to leave the 401k/403b arena?
Source: Iainsight.wordpress.com, April 2021
A closely watched case was filed in Texas against Shell Oil Company and Fidelity, the plan's recordkeeper, alleging that Fidelity engaged in a prohibited transaction by profiting from the use of participant data through its cross-selling practices. A ruling for plaintiffs would have required the court to go further than other courts that have addressed this issue and make a threshold determination that participant data is a plan asset. Once that hurdle was cleared, plaintiffs would have had to show that Fidelity was a fiduciary violating the ERISA prohibition in Section 406 against benefiting from the use of plan assets. However, on March 30, the Shell court dismissed the claims against Fidelity for failure to state an ERISA claim.
Source: Cohenbuckmann.com, April 2021
The GAO concluded that plan sponsors, recordkeepers, and others have little to go on as far as guidelines from the Department of Labor and that it isn't clear whether fiduciaries have the responsibility to minimize cybersecurity risks.
Source: Investmentnews.com (registration may be required), March 2021
The DOL's new missing participant guidance confirms that the DOL expects to see written policies and procedures regarding these terminated vested participants and puts in writing many, if not all, of the various suggestions DOL investigators have made for locating these participants during investigations. In certain respects, the documents also offer welcome transparency, in particular regarding the investigative processes and case-closing practices that investigators should be following when conducting these investigations.
Source: Thompsonhine.com, February 2021
How well a plan fiduciary fulfills its duties and complies with ERISA is always important, but heightened enforcement efforts bring that into sharper relief, write two experts in legal issues and practices concerning plan governance. What fiduciaries and committees do -- and don't do -- are subject to greater scrutiny today, warn Winston & Strawn LLP partners Nancy Gerrie and Joanna Kerpen. They discuss some best practices ERISA plan fiduciaries should consider in striving to exercise prudence in governing a plan.
Source: Ntsa-net.org, February 2021
President Biden has been in office for 34 days and his nominee for Secretary of Labor, Marty Walsh, has not yet been confirmed. Nonetheless, several issues in the ERISA fiduciary space have already garnered the new administration's attention and there are certain clues about how this Department of Labor may impact the regulation and enforcement of ERISA's fiduciary standards.
Source: Morganlewis.com, February 2021
The DOL has issued its final rule regarding the use of financial factors in selecting investments in plans subject to ERISA. The final rule clarifies certain provisions in the proposed rule. The regulatory text of the final rule does not specifically refer to investments in environmental, social, and governance funds by retirement plan fiduciaries and participants. However, the explanatory comments issued with the Final Rule indicate that it is intended to apply to the use of ESG funds in ERISA plans.
Source: Dimeoschneider.com, February 2021
The DOL issued guidance to assist plan fiduciaries in fulfilling their ongoing obligation of locating missing or nonresponsive participants and distributing benefits to such participants or beneficiaries. In response to this guidance, employers and plan fiduciaries should review their internal retirement plan policies and procedures for locating missing participants and beneficiaries. They should enhance or revise their policies, as necessary, to incorporate the steps identified in the guidance as best practices.
Source: Ballardspahr.com, February 2021
The DOL has simplified the delivery of retirement plan information to participants through its new electronic disclosure rule. Although the E-Delivery Rule promises to expand the use of electronic delivery, retirement plans still retain a fiduciary duty to protect participants' personal information from cybertheft. Thus, retirement plans taking advantage of the new rule may face increased exposure to ERISA fiduciary breach claims alleging inadequate cybersecurity measures. This article discusses the DOL's E-Delivery Rule and the fiduciary considerations applicable to plans that rely on the new rule.
Source: Asppa.org, February 2021
Fiduciaries are wondering if it is ever possible to avoid a trial or extensive discovery if they are sued. Sometimes it is, as two recent federal district court decisions have shown. One was dismissed with prejudice, which means that the plaintiffs can't refile and bring the claims again. These decisions may provide a template for further dismissals of cases filed based on conclusory allegations and speculation rather than the actual conduct of the defendants.
Source: Cohenbuckmann.com, January 2021
2021 is a good time for retirement plan sponsors to consider hiring an advisor who will accept delegation to serve as their 401k plan's fiduciary investment manager. Often known as a 3(38) advisor, these professionals bring a high level of investment expertise and fiduciary prudence to the selection and monitoring of 401k plan investments. They also remove that responsibility -- and the potential liability that accompanies it -- from the plan sponsor.
Source: Alliant401k.com, January 2021
To fulfill their fiduciary obligations, plan sponsors need to ensure that service providers subject to 408(b)(2) rules satisfy their disclosure requirements under ERISA. If a service provider fails to meet their reporting requirements under 408(b)(2), the plan sponsor is required to act by sending the service provider a written request for compliance.
Source: Hallbenefitslaw.com, January 2021
Attorneys with Groom Law Group explain how the DOL has extended the reach of its "five-part test" for determining fiduciary status under ERISA. This makes its new prohibited transaction exemption all the more important, according to attorneys.
Source: Planadviser.com, December 2020
The final regulations set out the basic premise that a plan fiduciary charged with the responsibility to manage plan assets that include shares of stock also has the responsibility to manage shareholder rights appurtenant to those shares, such as the right to vote proxies. The applicable fiduciary must exercise such authority under the loyalty and prudence standards prescribed under ERISA. Note, however, this responsibility will not apply to an individual account plan, such as a 401k plan, that provides for pass-through voting to participants and beneficiaries.
Source: Winstead.com, December 2020
The DOL issued a final rule that amends the long-standing regulations that govern the selection of retirement plan investments by fiduciaries. One of the provisions is a prohibition on the use of an ESG fund as a QDIA. Plan fiduciaries that choose a fund that involves ESG screening strategies are taking a risk that the fund is not a permissible QDIA.
Source: Boutwellfay.com, December 2020
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
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
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 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
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
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
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
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
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
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
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
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
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
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
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
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 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 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
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
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
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
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