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.
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
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
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
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
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 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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