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COLLECTED WISDOM™ on Fiduciary Related News and Intelligence

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

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DC Plan Sponsors: Fiduciary Matters Matter

Abstract: The DOL has cut financial advisors some slack in getting ready to comply with its new fiduciary rule. But DC plan sponsors don't have the same luxury. That's because plan sponsors have been subject to ERISA. Based on the results of ABG's latest survey, many don't know it.

Source: Abglobal.com, August 2017

The Often Overlooked Fiduciary "Gotcha"

Abstract: The author wonders "why more plaintiffs' attorneys, plan sponsors and other investment fiduciaries have not fully utilized the cost-consciousness 'blueprint' that the Restatement provides in drafting pleading and addressing potential liability exposure based on alleged breaches of a fiduciary's duties of loyalty and/or prudence."

Source: Iainsight.wordpress.com, August 2017

Fiduciary Best Practices for Protecting Your Company

Abstract: Failing to follow best practices may leave a fiduciary personally liable for losses to the plan and result in removal from their duties. There are a number of actions fiduciaries can take to limit potential liability.

Source: Bsllp.com, August 2017

Winning Early Motions to Dismiss Breach of Fiduciary Claims, the Ministerial Defense

Abstract: One argument to use in seeking early dismissal of breach of fiduciary duty claims is the ministerial defense. The recent case that highlights the point is Turner v. Volkswagen Group of America, Inc.

Source: Boomerisablog.com, August 2017

QDIAs...A Recipe for Fiduciary Protection

Abstract: A Qualified Default Investment Alternative is a provision available to 401k and 403b plans that reduces the potential personal liability of plan fiduciaries while improving the ability of participants to build toward retirement. Since a QDIA offers advantages to plan sponsor and participants alike, one might wonder what would prevent an employer from implementing one.

Source: Alliantwealth.com, August 2017

Missing Participants -- Part One

Abstract: There are widespread reports of Department of Labor audits focusing on plan procedures with respect to "missing participants." The DOL is treating the failure to adopt and follow adequate missing participant search procedures as a fiduciary breach and a possible prohibited transaction. This article reviews current rules and practice with respect to missing participants.

Source: Octoberthree.com, July 2017

Retirement Plan Fees: Top Three Questions Answered

Abstract: With retirement plan fees serving as the centerpiece of fiduciary breach lawsuits, it is no wonder that this is the leading topic of interest with retirement plan fiduciaries.

Source: Cammackretirement.com, July 2017

The Supreme Court Indirectly Stiffens a Fiduciary Breach Time Limit

Abstract: The Supreme Court appears to have barred equitable tolling under ERISA Section 413's six-year statute of repose for fiduciary breach claims, subject only to well-pled allegations and proof of fraud or concealment.

Source: Erisa-employeebenefitslitigationblog.com, July 2017

Avoiding Fiduciary Traps: Eight Tips for DC Plan Sponsors

Abstract: Defined contribution plan sponsors often worry about landing in hot water for doing the wrong thing. However, many fiduciary issues crop up because plan sponsors have failed to take action. Here, we list eight potential fiduciary traps and suggest ways to avoid them.

Source: Callan.com, July 2017

The Risk Of 3(38) Fiduciary "Flexibility"

Abstract: There are many reasons that a plan sponsor and/or a plan advisor would look to engage an investment manager under section 3(38) of ERISA. But if you invite flexibility into your 3(38) services, you should understand the risks.

Source: 401kspecialistmag.com, July 2017

Appointing and Monitoring a 401k Investment Manager Under ERISA

Abstract: Employee-benefit attorneys advising retirement plan sponsors frequently mention that plan fiduciaries are not liable for the acts or omissions of an appointed investment manager, and aren't obligated to invest or otherwise manage plan assets subject to their oversight. However, a recent district court decision has implications for how retirement plan sponsors should monitor their adviser.

Source: Investmentnews.com (registration may be required), July 2017

Why Avoiding Conflicts of Interest Matters in the Investment Business

Abstract: In most professional settings, avoiding conflicts obviously matters. It's self-evident. Yet, in many quarters in brokerage and investment advice, it's not self-evident at all.

Source: Thefiduciaryinstitute.org, July 2017

Chipping Away - Does the DOL's Fiduciary Rule Continue to Be on the Chopping Block?

Abstract: What to many was an implementation of the fiduciary rule by the DOL that ran counter to an apparent hostility to the rule throughout various quarters of the Trump administration has now been followe‎d by a steady flow of further action that can be characterized as questioning, or maybe even indicating outright hostility to, the Rule.

Source: Dechert.com, July 2017

Simplifying Tasks and Reducing Risk Under the Fiduciary Rule

Abstract: The new DOL rule seeks to bring brokers and insurance reps to heel by establishing a stronger baseline of fiduciary protection. If they wish to continue providing advice to company retirement plans, they now will be held to a higher standard: the best interests of the client. And employers will need to monitor their activity to ensure these advisors are fully compliant.

Source: Alliantwealth.com, July 2017

The Surprising Benefits of a 3(38) Fiduciary

Abstract: A 3(38) arrangement is a way of outsourcing the burden of investment decision making -- and risk -- to a qualified expert. 3(38) investment managers are a distinct breed of fiduciaries legally required to act in their clients' best interests when it comes to choosing funds and managing assets.

Source: Captrustadvisors.com, July 2017

Why Independent Fiduciary Advisors Are in Best Position to Fulfilling the 401k Promise

Abstract: Hiring an independent investment fiduciary for a participant directed 401k plan offers both the fiduciary protection for owners/executives intended by ERISA and the unbiased advice needed by America's workers to maximize their standard of living in retirement.

Source: Brentwood401k.com, July 2017

"Apples to Apples" and Other Investment Return Issues

Abstract: Courts, plan sponsors, and investment fiduciaries in general must be able to differentiate between nominal returns, load-adjusted, and risk-adjusted returns in order to (1) know when each is appropriate, and (2) to be able to properly determine whether a fund is providing commensurate value for higher fees in order to ensure that they are properly comparing "apples to apples" in order to act in the "best interests" of a plan and its participants.

Source: Iainsight.wordpress.com, June 2017

With the Tip of a Hat, a Fund Manager Can Be an ERISA Fiduciary

Abstract: Some advisors may now find themselves unexpectedly wearing a "fiduciary hat" with respect to benefit plan clients (including individual retirement accounts). While it is expected that the scope of the final DOL fiduciary rule has limited effect for fund managers, there are certain marketing and promotional activities that could implicate the final regulation.

Source: Winstead.com, June 2017

401k Rollovers to IRAs and the DOL Fiduciary Rule

Abstract: The provision in the DOL fiduciary rule that says distribution and rollover recommendations are fiduciary advice was not changed; it was only delayed from April 10 to June 9. Therefore, any rollover recommendation on or after June 9 will be deemed fiduciary advice and will require a prudent process and an exemption from the prohibited transaction rules.

Source: Planadviser.com, June 2017

Fiduciary Reforms Will Impact Expanding HSA Market

Abstract: The DOL fiduciary rule expansion establishes ERISA fair dealing requirements in the sale and service of health savings accounts; employers have a lot of questions about what this means.

Source: Planadviser.com, June 2017

Alternate Fee Calculation/Allocation Models

Abstract: Calculating recordkeeping fees and charging them to participants is a matter that should be carefully considered by fiduciaries, especially in light of emerging methods in this area. The best model for one plan may not be the best model for another due to demographic plan differences, such as the number of small account balances.

Source: Cammackretirement.com, June 2017

The DOL's Fiduciary Rule Is Here, Are You Prepared?

Abstract: As a plan fiduciary, the goal is to deliver a top performing vendor plan to your employees with low fees and great service. How does the DOL's new fiduciary rule impact that goal and what should you do as a result? This short article outlines a few steps to take with respect to the rule.

Source: Pension-Consultants.com, June 2017

Questioning 401k Lawsuits Based on Investment Outcomes

Abstract: No one can predict the excess return relative to a benchmark (Alpha) that is usually associated with active investment management. Then it should come as no surprise that no one can predict the market (beta). Choosing investments is a subjective endeavor. So why are so many legal actions and allegations against Employer Retirement Plans Sponsored Plans based on subjective endeavors with unknown outcomes?

Source: 401khelpcenter.com, June 2017

SEC Chair Clayton's Recent Fiduciary Comments Are Revealing

Abstract: The SEC chair issued only a brief statement on his intention to work with DOL officials on reforming conflict of interest regulations, but his language is revealing.

Source: Planadviser.com, June 2017

Fiduciary Update

Abstract: This article provides an update on the DOL's conflict of interest rule expansion and compliance, deathbed beneficiary changes, required minimum distribution, and other fee related litigation.

Source: Captrustadvisors.com, May 2017

The DOL Will Not Delay Fiduciary Rule

Abstract: Labor Secretary, Alexander Acosta, threw in the towel in his effort to delay the application date of the Fiduciary Rule. Barring any additional developments, the Rule will now become applicable, as scheduled, on June 9, though certain provisions do not become applicable until January, 2018.

Source: Cammackretirement.com, May 2017

Heeding the Call of (Fiduciary) Duty

Abstract: Sometimes the "basics" get so shopworn they lose their punch, like the solemn performance of fiduciary duty and its importance to every retirement plan sponsor and nonprofit institution and their investment committees. This is a brief refresher.

Source: Vanguardinstitutionalblog.com, May 2017

Fiduciary Rule Debate Impacts State-Run Plans for Private Sector

Abstract: A new bill introduced by Senate Democrats, seeking to protect ERISA exemptions for state- and city-run retirement plans for the private sector, would likely be made redundant with the removal of the Obama-era fiduciary rules.

Source: Planadviser.com, May 2017

Courts' Interpretations of 401k Fiduciary Laws Are Changing

Abstract: It appears that laws of fiduciary prudence under ERISA are evolving. A recent district court decision, in Lorenz v. Safeway, demonstrates this point. The prudence requirement in being gauged based on the portfolio in aggregate but also on individual investment options.

Source: Investmentnews.com (registration may be required), May 2017

Fidelity's Approach to DOL Fiduciary Rule Rankles Some 401k Advisers

Abstract: Their ire stems from changes that Fidelity is making to its business in relation to compliance with the DOL's fiduciary rule. Fidelity is taking on fiduciary responsibility for both plan-level and participant-level advice in some DC plans, which itself may not seem out of the ordinary since the conflict-of-interest regulation is creating a massive shift in the way retirement plan providers operate. The way Fidelity is going about it, though, is where there's tension.

Source: Investmentnews.com (registration may be required), May 2017

Free Guide: "The Intelligent Fiduciary"

Abstract: Fiduciaries can't insulate themselves from being sued, but they can minimize their risk and be in a good position to defend a lawsuit if they follow good fiduciary practices. Attorney Carol Buckmann has been writing on the topic for years and has now complied some of her more popular works in this free booklet.

Source: Cohenbuckmann.com, May 2017

Fourth Circuit Agrees: Fiduciaries' Faulty Process for Eliminating Stock Funds Did Not Cause Plan's Losses

Abstract: This case demonstrates that the "would have" standard for showing that a plan fiduciary's breach did not cause a loss is difficult, but not impossible, to satisfy. Making a prudent choice by an inadequate process, however, is just lucky. Plan fiduciaries are on much safer ground when they establish and carefully follow a prudent process.

Source: Thomsonreuters.com, May 2017

Fiduciary Prologue to a Cross-Examination

Abstract: The fulfillment of fiduciary duties becomes apparent where there is evidence of behaviors and methodology, in "content and oversight," that improve the likelihood that the beneficiary of the asset(s) achieve their goals. When one is compelled to discover evidence of fiduciary behaviors, clues materialize in the products that were purchased, the timing of the purchases, how such products meshed and correlated with other assets, the level of compensation, and any compensation relationships if applicable.

Source: 401khelpcenter.com, May 2017

DOL Fiduciary Rule: Good for Business but Opposed by the U.S. Chamber

Abstract: The DOL's fiduciary rule is also pro-business by making it easier for 401k plan sponsors to meet their fiduciary responsibilities and lower their plan expenses. The author writes, "While I understand the COC is representing the interests of the financial services industry by opposing the Fiduciary Rule, I think their position is myopic -- they should be supporting the rule to better represent their much bigger constituency of 401k plan sponsors."

Source: Employeefiduciary.com, May 2017

Fiduciary Sudoku -- Comprehending ERISA 3(16), 3(21) & 3(38)

Abstract: Vendors who service retirement plans will use the terms 3(16), 3(21) and 3(38) to describe their service offering. The terms have often been taken for granted, and sometimes abused by service providers looking for a marketing edge. This article offers some clarification and understanding regarding the terms.

Source: Alliantwealth.com, May 2017

401k Fiduciaries: Is It Time to Hone Your Processes? (Part One)

Abstract: Last year was a signal year for ERISA fiduciary responsibility. And, no, we're not talking about the DOL conflict of interest rule. The author shares some developments on the fiduciary responsibility litigation front that may require your attention.

Source: Fiduciaryplangovernance.com, April 2017

401k Lawsuits Can Be Avoided With the Right Fiduciaries

Abstract: The complicated task of establishing a Retirement Committee or a Benefits Committee come with some basic Do's and Don't's and selecting the right fiduciaries is as important as selecting the right advisor or vendor. This article covers some tips for plan sponsors when selecting committee members.

Source: 401ktv.com, April 2017

DOL Charts a New Course for ERISA's Fiduciary Rule

Abstract: The article and chart provides a high-level summary and timeline of the applicability of the various aspects of the fiduciary rulemaking, and identifies a few discrete issues that industry participants might consider in anticipation of the June 9 applicability date.

Source: Dechert.com, April 2017

401k Plan Trustees: How Do You Monitor and Select Investments?

Abstract: The resident plan fiduciaries (the company officers and key employees who act on behalf of the sponsor as plan administrator or trustee) have a legal duty to "select and monitor" plan investments and, in the case of sponsors who have hired investment professionals, to monitor not only investment performance but also the performance of the investment professionals. So, how do you "select and monitor"?

Source: Retirementplanblog.com, April 2017

More 401k Advisers Face Litigation Risk in June Under DOL Fiduciary Rule

Abstract: A greater number of advisers and firms servicing 401k plans and their participants could be at risk of litigation in a few months' time, when implementation of some provisions of the Labor Department's fiduciary rule are set to kick in. This is due to the details of the recently finalized delay to the fiduciary rule issued last week by the Trump administration, as well as nuances of the regulation and its interplay with federal retirement law.

Source: Investmentnews.com (registration may be required), April 2017

DOL Not Backing Down From Fiduciary Rule, Analysts Say

Abstract: While the Department of Labor delayed the controversial Obama-crafted fiduciary rule for 60 days, it also expressed surprising support for the regulation. The DOL clearly does not back down from the Fiduciary Rule and exemptions as a general matter.

Source: Insurancenewsnet.com, April 2017

Target-Date Funds: Can Employers Get Lost in Space?

Abstract: Target-Date Funds are as diverse as the universe. Plan sponsor fiduciaries -- who must exercise prudence and demonstrate expertise in selecting the investments that will be offered to plan participants -- must understand the unique features of their workforce as well as the features of each TDF series they consider before making their selection. Failure to do so "as an expert" can result in potential personal liability for fiduciaries.

Source: Alliantwealth.com, April 2017

DOL Releases Final Extension of Applicability Date

Abstract: On April 4, 2017, the DOL released for public inspection its final regulation extending the applicability date of the Fiduciary Rule from April 10, 2017 to June 9, 2017 as well as providing additional transition relief through the end of the year. While the final extension offers some relief, it is a mixed bag.

Source: Groom.com, April 2017

Fee Study of 525 401k Financial Advisors: Why Trump Can't Reverse Tide of Fiduciary Advice

Abstract: Following several high-profile excessive fee lawsuits, more 401k plan sponsors than ever are hiring fiduciary-grade financial advisors to lower their liability. The kicker? Their impartial advice is often cheaper than potentially-conflicted, non-fiduciary advice.

Source: Employeefiduciary.com, April 2017

Video: The 3(38) Fiduciary Service Challenge Ahead

Abstract: Dick Friedman with IRON Financial clears up confusion over the '3s.' Why 3(38), 3(21) and 3(16) services are more important than ever, and why advisors are so confused about each.

Source: 401kspecialistmag.com, March 2017

Merrill Lynch and Morgan Stanley: A Tale of Two Fiduciary 401k Business Models

Abstract: The wealth management units at Merrill Lynch and Morgan Stanley within the past few weeks announced substantive changes to their respective 401k businesses, and while each approach shares common ground they also differ in notable ways.

Source: Pionline.com, March 2017

Plan Sponsors Want Help With DOL Fiduciary Duties

Abstract: Plan sponsors worry about participants suing over inferior investment choices or high fees. At the same time, they're anxious about the Labor Department or Internal Revenue Service finding fault with their plan design or processes. They want advisers who are experts on the intricacies of the laws governing retirement plans, as well as a partner to share the stressful liability.

Source: Investmentnews.com (registration may be required), March 2017

Despite Uncertainty, DOL Fiduciary Rule Upends 401k Biz

Abstract: Even though its fate is unclear, the Department of Labor's fiduciary rule is upending the retirement plan adviser market, which spans the adviser spectrum from "dabblers" to defined contribution "specialists." Observers say such changes began taking root prior to the promulgation of the rule last year but are being accelerated by the DOL regulation.

Source: Investmentnews.com (registration may be required), March 2017

Managing Critical 403(b) Issues through Proper Allocation of 3(16) and 3(21) Fiduciary Responsibility

Abstract: Service providers are demonstrating their ability to customize their fiduciary services to their customers needs and -- just as important -- to their own capacity to provide selected services where they feel they can add value. The complex nature of handling 403(b) plans make these plans uniquely suited to customized fiduciary services.

Source: Businessofbenefits.com, March 2017

Put It in Writing! Why Your 401k Plan Should Have Written Policies

Abstract: Plan fiduciaries worry not only about being a target of class action lawsuits, but also about the possibility of being selected for an IRS or Department of Labor audit. More and more fiduciaries are coming to realize that memorializing a set of carefully-thought out plan policies and following them can be their best defense in these situations.

Source: Cohenbuckmann.com, March 2017

As DOL Fiduciary Rule Sits on Ice, Is It Thumbs Up or Thumbs Down for Advisors?

Abstract: Whether the Department of Labor fiduciary rule continues to be delayed, eventually takes effect, or ends up being repealed, the proverbial beans have been spilled, as many advisors and their respective firms have already taken the actions needed to comply, thus proving some areas of debate true and others false.

Source: Marketstrategies.com, March 2017

Fiduciary Fee Reasonableness

Abstract: Fee reasonableness is a fundamental and widely discussed fiduciary topic. Despite the importance of the topic, the DOL hasn't given much insight or guidance as to what is considered a reasonable fee. As a result, much of the interpretation of what is and is not reasonable has come from the courts. As a fiduciary, it is important to turn to litigation for guidance, acknowledge how excessive fee allegations have evolved, and most importantly, to appropriately manage this risk in the future.

Source: Manning-Napier.com, March 2017

401k Fees -- Frequently Asked Questions by Plan Fiduciaries

Abstract: If you're a 401k fiduciary, you don't want to be in the dark about your plan fees. The potential consequences for paying excessive 401k fees are too great. This FAQ will answer some of the most common 401k fee questions.

Source: Employeefiduciary.com, March 2017

What If the DOL Wrote the Rules of Golf?

Abstract: The U.S. and British golf associations recently announced that significant changes are being proposed to make the rules of golf easier to understand, and the game less time-consuming and more fun to play. Imagine what would happen if the DOL was put in charge of writing the Rules of Golf.

Source: 401khelpcenter.com, March 2017

Five Guiding Fiduciary Principles

Abstract: Defined contribution plans find themselves in an increasingly complex and litigation-prone world. Therefore, it is important to debunk common investment misperceptions, and instead underline what the real focal points for fiduciaries should be.

Source: Troweprice.com, March 2017

A Lot of Good Come Has From the Fiduciary Rule

Abstract: Despite the news that advisers may not be legally required to provide advice that benefits their clients more than themselves (in the form of commissions and kickbacks), a lot of good come from the fiduciary rule already. There are at least four major benefits.

Source: Castlerockinvesting.com, March 2017

Experts Still Expect Private Enforcement of Fiduciary Standard

Abstract: Even if the DOL leadership under President Trump declines to enforce a strict fiduciary standard, private litigators will undoubtedly pick up any slack if the administration fails to fully eliminate the Obama-era conflict of interest rulemaking.

Source: Planadviser.com, March 2017

Can A Retirement Plan Have Too Much Risk Management?

Abstract: Retirement plan fiduciaries and their advisors are well served by identifying primary goals, major obstacles and both short-term and long-term nightmares that would generate serious pain for participants. Said differently, risk management is a good thing unless it prevents someone from achieving important milestones.

Source: Pensionriskmatters.com, March 2017

The Impending Fiduciary Armageddon of (Most) Mutual Fund Share Classes

Abstract: Under a fiduciary rule, there is only a legitimate need for one or two share classes at most. Thus, whether it's the DOL fiduciary rule, or one that follows within a few years from the SEC, what we'll soon see is an Armageddon that destroys most mutual fund and variable annuity share classes, as we complete the shift from selling whatever products we can get paid to sell, into advisors who actually sell advice and implement the best solutions we can at the lowest cost available.

Source: Kitces.com, February 2017

401k Index Funds -- They Make it Easy to Reduce Fiduciary Liability

Abstract: Investment in equity index funds -- and other passively-managed investments designed to track a market index -- is exploding. If you are a 401k fiduciary, this trend is great news. While it can be difficult for 401k fiduciaries to insulate themselves from investment-related liability using actively-managed funds, this job can be dead simple using index funds.

Source: Employeefiduciary.com, February 2017

Is the Prudent Man Standard Good Enough?

Abstract: Any law that holds human beings to the standards of an expert in any field is a high standard, and one that can be difficult to meet even with the ablest of expert assistance. It's often said that ERISA's prudent man rule is the highest duty known to law. But is that enough?

Source: Napa-net.org, February 2017

Education Is an Important Part of the Fiduciary Process

Abstract: There have been so many misconceptions that plan sponsors and advisors have had concerning ERISA 404(c) plans. They had this belief that if they just give a mutual fund lineup and some fund profiles to plan participants that they are exempt from liability. But, ERISA 404(c) protection is about following a process and fund profiles are just not enough education to give to plan participants. On the flipside, education to participants doesn't have to amount to an MBA education.

Source: Jdsupra.com, February 2017

Fiduciary Liability Claim Trends

Abstract: Retirement plans are increasingly in the crosshairs for plaintiffs' lawyers. Allegations of breach of fiduciary duty based on payment of higher-than-reasonable fees to ERISA plan service providers are becoming more common. In the past 18 months, at least 38 ERISA class actions have been filed.

Source: Lockton.com, February 2017

Not All Fiduciaries Are Created Equal

Abstract: There are different kinds of fiduciaries, and some offer more layers of protection than others. So make sure you understand the nuances behind the designations.

Source: Kiplinger.com, February 2017

Retirement Plan Investment Programs Harbor Newly Revealed Risks

Abstract: Investment advisor conflicts of interest can cause participants to overpay for investment related services, which reduces their net investment returns and exposes their employers to fines and class action lawsuits. The DOL points out that the organizations that sponsor the plans, not the investment firms, are accountable for any excessive fees paid from plan assets. If you're unsure of where your plan's investment program aligns with the DOL's revelations, here's what to look for.

Source: Rolandcriss.com, February 2017

For DC Plans, Lowest Fees Aren't a Panacea

Abstract: There's no question fees are a hot topic for defined contribution plan sponsors. But one risk of focusing too tightly on fees is creating a distortion that addresses cost while possibly overlooking other retirement-saving factors. With so many equal or greater concerns, it's important for plan sponsors to keep a broad perspective and maintain a comprehensive approach to their fiduciary duties.

Source: Abglobal.com, January 2017

In the Complicated World of ERISA, a Fiduciary Checklist Can Help

Abstract: Checklists. Doctors use them. Engineers use them, Pilots use them. A checklist is a tool to manage complicated jobs. Now let's put that concept into the context of an individual who has fiduciary responsibilities for an ERISA plan. A checklist can help ensure that you are meeting all your responsibilities and accomplishing the plan's objective.

Source: Retirementplanblog.com, January 2017

Did President Trump's Executive Order Push Back the Fiduciary Rule?

Abstract: On Jan. 20, President Trump signed a regulatory freeze pending review, but did that affect the timing of the fiduciary rule?

Source: Asppa.org, January 2017

DOL Fiduciary Rule Will Be Undone in a Cruel Twist

Abstract: Perhaps the biggest legislative effort since 1940 to put client interests ahead of Wall Street will be allowed to effectively die in a Texas court at the hands of what was once deemed to be a two-bit lawsuit, according to Jason Roberts, CEO of the Pension Resource Institute in Los Angeles.

Source: Riabiz.com, January 2017

401k Advice in a Post-Fiduciary World

Abstract: Numerous surveys conclude that individual company 401k retirement plan participants want independent, third-party investment advice from an investment advisor who acts in their best interests regarding their retirement plan assets. The DOL fiduciary rule provides you exactly that opportunity now.

Source: Insurancenewsnet.com, January 2017

The DOL Fiduciary Class Action Lawsuit That Will Really Transform Financial Advice

Abstract: Right now there is no universally accepted minimum competency standard for financial advice, though certainly recognized rigorous designations that include both education and an advice process provide a likely path of safety for Financial Institutions. Which means in the coming year, there may soon be explosive growth in programs like the CFP and RMA, as Financial Institutions recognize and then try to minimize their exposure to a class action lawsuit for failing to meet the fiduciary duty of care.

Source: Kitces.com, January 2017

Titles Advisers Use Are Playing a Bigger Role in Fiduciary Regulation

Abstract: Though uncertainty prevails around the future of the fiduciary rule under a new administration, there are clear indications that the titles financial advisers use will play a bigger role in fiduciary regulation going forward. Even opponents of the DOL rule appear to be zeroing in on titles that cause confusion with the investing public.

Source: Investmentnews.com (registration may be required), January 2017

DOL Revisits, Relaxes Retirement Plan Proxy Voting Guidance

Abstract: While the DOL's conflict-of-interest guidance is unquestionably the most high-profile fiduciary issue today, it is far from being the only fiduciary consideration to those who sponsor or administer retirement plans. The DOL issued Interpretive Bulletin 2016-1 addresses retirement plan fiduciaries' responsibilities for voting proxies related to retirement plan investments. Notable in this guidance is the DOL's affirmation that plan fiduciaries may consider environmental, social, and governance factors.

Source: Ascensus.com, January 2017

Fiduciary Standard vs. Suitability Standard: The Gotcha That Won't Go Away

Abstract: While the DOL's new fiduciary rule arguably helps define the duties owed by financial advisers who provide investment advice to retirement plans and their participants, from a purely legal standpoint, those duties may already be sufficiently defined regardless of the actions the Trump administration may take.

Source: Iainsight.wordpress.com, January 2017

Breaking Down the Three Key Elements of the DOL Fiduciary Rule

Abstract: All three elements described in the DOL's Fiduciary Rule -- (1) a fiduciary (2) that renders (non-discretionary) investment advice (3) for compensation -- must be present in order for the Rule to apply to an advisor communicating with a plan participant or an IRA owner.

Source: Morningstar.com, January 2017

Trump's SEC Pick Seen Unlikely to Advance Fiduciary Standard

Abstract: With the selection of Jay Clayton to head up the SEC, President-elect Trump has not chosen a government veteran or an attorney with a long record of investor advocacy. Instead, Clayton is someone who some expect to scale back enforcement activity and unlikely to race toward major new rulemakings.

Source: Financial-Planning.com, January 2017

SEC Offers Guidance on DOL Fiduciary Rule Compliance

Abstract: Since the DOL conflict of interest rule's publication, mutual fund providers and their adviser-intermediaries have also been asking the SEC extensive questions about sales loads, fee schedules, etc.

Source: Planadviser.com, January 2017

Information Letter on Application of Fiduciary Provisions to Certain Default Investments

Abstract: The DOL has issued an Information Letter on the application of ERISA's fiduciary provisions to default investments with lifetime income features that contain certain liquidity and transferability restrictions.

Source: Benefitsforward.com, January 2017

SEC Gets in on 401k Fiduciary Rule Compliance

Abstract: The Guidance Update will make it easier for mutual funds to create and administer compensation arrangements tailored to comply with the fiduciary rules. It does not address, however, the extent to which brokers may independently set their compensation.

Source: 401kspecialistmag.com, January 2017

Yes, Plan Fiduciaries, You Can Exercise Shareholder Rights

Abstract: Employee benefit plan fiduciaries can exercise their shareholder rights with proxy voting as part of their fiduciary duty to manage plan assets, the Department of Labor said Dec. 28.

Source: Bna.com (registration may be required), December 2016

Adopting a Fiduciary Governance Program

Abstract: This article discusses establishing a program for fiduciary governance, a program that defines the roles and responsibilities of those who oversee and manage your corporate retirement plan, as well as processes and tasks for their committee meetings.

Source: Alliantwealth.com, December 2016

The Role of the Investment Committee in Your DC Plan

Abstract: The New Year is a perfect time to address many of the annual review items in the 401k compliance and governance checklist. As the New Year unfolds, plan sponsors may want to evaluate the composition of their Investment Committee.

Source: 401ktv.com, December 2016

3(21), 3(38), or 3(16): Find the Right 401k Fiduciary Services for You

Abstract: How much work and liability do you want to take on? How much expertise can you delegate internally? What do you want your team to spend their time on? This article compares the full spectrum of work you can delegate out to an ERISA fiduciary.

Source: Forusall.com, November 2016

A Prudent Process: The Key to Demonstrating Fiduciary Compliance

Abstract: This 9-page paper starts by understanding the decades old federal law that establishes the duties of a fiduciary and then explore how advisors who find themselves in a fiduciary role can demonstrate compliance.

Source: Sourcemedia.com, November 2016

Three Influencers Driving Today's Fiduciary Best Practices

Abstract: Regulators are but one of the three key influencers shaping best practices for new fiduciaries. Financial institutions are working aggressively to comply with the DOL's new rule; however, advisors can take actionable steps today to better identify the needs and best interests of retirement plan participants and IRA holders.

Source: Manning-Napier.com, November 2016

The Reason for the DOL Rule: IRAs

Abstract: The primary reason for the Department of Labor's fiduciary rule doesn't involve protecting qualified retirement plans but rather unsuspecting IRA owners.

Source: Morningstar.com, November 2016

What Do 401k Plan Fiduciaries Need to Know About Revenue Sharing?

Abstract: ERISA does not prohibit retirement plan revenue sharing or even the retention of revenue sharing payments by retirement plan service providers. So, what's the concern? What do 401k plan fiduciaries need to know about revenue sharing? Here are some answers.

Source: Klgates.com, November 2016

Did DOL Fiduciary Rule FAQ Just Fire Warning Shot at Target-Date Fund/Index Fund Fees?

Abstract: Did the DOL just fire a warning shot to those charging adviser fees on top of target-date funds and index funds? A close reading of its just released "Conflict of Interest Exemptions FAQs," the DOL may be suggesting advisers may be overcharging for popular "set-it-and-forget-it" retirement investments.

Source: Fiduciarynews.com (registration may be required), November 2016

Owner/Trustee of 401k Plan Accused of Having Eyes Wide Shut on Fiduciary Duties

Abstract: A class action complaint was recently filed against the owner of the Emerald Coast Eye Institute. The two plaintiffs allege that they were terminated because of complaining to the owner and Plan Trustee about breaches of fiduciary duty with respect to the 401k Plan resulting in losses and damages over $1 million.

Source: Benefitsnotes.com, October 2016

Is Your 403(b) or 401k Retirement Plan on Autopilot?

Abstract: Over the last several months, plan participants of the 403(b) and 401k plans of many not-for-profit institutions filed class action lawsuits against their respective retirement plans, alleging excessive fees and mismanagement of retirement assets by the plan sponsor. This article suggests plan sponsors of both not-for-profit and for-profit organizations to review and ensure they're following best practices outlined here in an effort to meet their fiduciary obligations.

Source: Plantemoran.com, October 2016

Six Steps to Complying with the New Conict of Interest Rule

Abstract: Many plan fiduciaries are not accustomed to testing the regulatory compliance status of their vendors. Although the responsibility to verify a vendor's regulatory status is a challenge for plan fiduciaries, the six-step approach outlined in this 4-page paper can eliminate the guesswork and streamline the work involved.

Source: Rolandcriss.com, October 2016

Fiduciary Rule Will Change DC Plan Fund Menus in 2017

Abstract: The US Department of Labor's Conflict of Interest Rule, commonly known as the fiduciary rule, will cause a surge in mutual funds being reviewed and replaced in employer-sponsored define contribution (DC) retirement plans, even before the Jan. 1, 2018 deadline for full compliance. This is according to a recent Ignites Retirement Research survey of 251 elite plan advisors.

Source: 401khelpcenter.com, October 2016

Don't Hold Your Breath for the SEC Fiduciary Rule

Abstract: SEC Chair Mary Jo White has reiterated that her agency's fiduciary rule is coming, but "not any time soon." White made her remarks on Sept. 27 at the Securities Industry and Financial Markets Association's capital markets conference annual meeting in Washington, D.C.

Source: Asppa.org, September 2016

Class Action Litigation Against Fiduciaries

Abstract: This is the slide deck from a recent webinar that reviewed the recurring claims against retirement plan sponsors and the steps fiduciaries may consider taking to document and to demonstrate prudence, shielding themselves against similar class action suits. Presenters were Richard J. Pearl, attorney at Drinker Biddle & Reath, and Erik Daley, Managing Principal for the Multnomah Group.

Source: Multnomahgroup.com, September 2016

The Restatement of Trusts, the Prudent Investor Rule and the DOL's New Fiduciary Rule

Abstract: Ever since the DOL announced its new fiduciary rule, much has been made of the alleged "ambiguity" of certain aspects of the rule, such as "best interests" and "reasonable compensation," with suggestions that the meaning of the rule and the full extent of one's obligations under the rule will not be clear until the courts have interpreted the rule. The author thinks "those that adopt such a position may well be exposing themselves to unnecessary potential liability exposure."

Source: Iainsight.Wordpress.com, September 2016

How the New DOL Fiduciary Rule Is Disrupting the Advisory Landscape

Abstract: The DOL's new rule is already disrupting the annuity industry as sellers of the insurance product scurry to move to fixed-fee models. After a 10-year surge in assets, sales are projected to decline 30 to 35 percent next year. It may also serve to weed out a few small fish.

Source: Kurtosys.com, August 2016

Are 401k 3(38) Services Worth the Price?

Abstract: Designating a 3(38) investment advisor can be a beneficial choice for plan sponsors. But when reviewing this option plan sponsors need to determine if it is in the best interest of the participants to hire this type of advisor. This article outlines some of the advantages and disadvantages that plan sponsors should investigate when considering this option.

Source: 401kspecialistmag.com, August 2016

New DOL Fiduciary Ruling Sparking Unprecedented Levels of Advisor Anxiety

Abstract: While advisors agree with the overall concept and spirit of the DOL's fiduciary ruling, concerns ring aplenty, as the vast majority have yet to be convinced that the new legislation will deliver on its intent. First and foremost, advisors lament that the DOL fiduciary ruling is casting an overall negative industry gloom and is fueling investors' focus on fees.

Source: Marketstrategies.com, August 2016

DOL's Fiduciary Rule Poses New Litigation Threat to IRA Advice

Abstract: Financial advisors working with individual investors need to take note since the Fiduciary Rule holds financial planners providing investors with IRA advice to an ERISA-like standard of care. In addition to holding planners providing IRA advice to the highest standard under law, the Fiduciary Rule also opens the door to unhappy clients filing class action lawsuits.

Source: Manning-Napier.com, August 2016

"Tipping Off" Potential ERISA Fiduciary Violations

Abstract: The recent actions filed by Jerome Schlichter against seven private colleges and universities raised a number of new issues. Writer believes that the plans actually tipped-off their violations as a result of certain decisions and/or policies they adopted. Also suggests that many plans will continue to tip-off plaintiffs' attorneys and regulators by engaging in the same sort of practices that Mr. Schlichter's actions have cited.

Source: Iainsight.wordpress.com, August 2016

Is Using Active Investment Management a Fiduciary Breach?

Abstract: The case against active management as a prudent choice, at least for investment fiduciaries like retirement plan sponsors and trustees of endowment and foundation funds, appears to be both theoretically (Sharpe) and empirically (Philips et. al.) compelling.

Source: Fiduciaryplangovernance.com, July 2016

Key Fiduciary Decisions Loom for Retirement Plans Using MM Funds

Abstract: In July 2014, the SEC adopted a beefed-up rule designed to make money funds less susceptible to heavy redemptions and loss of principal during a financial panic. Oct. 14 is the compliance deadline for the rule. If plan fiduciaries haven't done so yet, they should start preparing now to assess how the new regulation will impact the investment options available to participants.

Source: Investmentnews.com (registration may be required), July 2016

DOL Communicates Importance of Retirement Plan Fiduciary Responsibilities

Abstract: The DOL's Fiduciary Education Campaign has provided seminars around the U.S. in addition to providing various tools and publications. If you are responsible for administering your organization's 401k plan or other company-sponsored employee benefit plan, it is important to keep certain essential duties in mind. Some of the most important duties to adhere to in order to meet these fiduciary responsibilities are outlined here.

Source: Schneiderdowns.com, July 2016

Solicitor's Fees at Risk Under DOL Fiduciary Rule

Abstract: Referral fees are commonplace, with centers of influence the most valuable source of new business for advisors, whether that includes CPAs, TPAs, attorneys, HR consultants or even other advisors who are not ERISA specialists. But, is referring or recommending an advisor a fiduciary act under the new DOL rule?

Source: Napa-net.org, July 2016

DOL Officials Resolute, But Flexible, on Fiduciary Rule

Abstract: Perez noted that there are lawsuits that have been set in motion against the fiduciary rule, pledging that the DOL will fight them "vigorously." He reportedly added that he contends that the department is "on the right side of history" in promulgating the rule.

Source: Asppa.org, July 2016

DOL Fiduciary Rule Stands as Veto Override Falls Short

Abstract: House Republicans have failed -- by a wide margin -- to overturn President Barack Obama's earlier veto of legislation to block enforcement of final U.S. Labor Department pension plan fiduciary rules.

Source: Businessinsurance.com, June 2016

Fiduciary Financial Advice to Retirement Savers: Don't Overlook the Prudent Investor Rule

Abstract: This essay calls attention to the regulatory imposition of the prudent investor rule on financial advisers to retirement savers. The essay also canvasses the basic tenets of the prudent investor rule, highlighting its nature as principles-based rather than prescriptive, and the customary role of an investment policy statement in compliance by professional fiduciaries.

Source: Ssrn.com, June 2016

No SEC Fiduciary Rule Till After Obama Departs: SEC Chief White

Abstract: A uniform fiduciary rule by the SEC will not be released before the end of the Obama administration, but the agency will watch the unfolding of the Department of Labor's fiduciary rule to see if a "conflict develops," SEC Chairwoman Mary Jo White told Senate lawmakers.

Source: Thinkadvisor.com, June 2016

Obama Vetoes Congress' Disapproval of Fiduciary Regulation

Abstract: President Obama has vetoed Congress' resolution that would have nullified the Labor Department's fiduciary regulation.

Source: Asppa.org, June 2016

Fiduciaries Face an Alarming Number of Stable Value Fund Lawsuits

Abstract: In the last several months, plaintiffs have filed multiple class action lawsuits against plan sponsors, plan fiduciaries, and stable value fund providers. As a result, plan sponsors and plan fiduciaries may want to evaluate the process they use to decide to invest in stable value funds.

Source: Employeebenefitsblog.com, June 2016

Lawsuit Against DOL Fiduciary Rule Seen as 'Weak'

Abstract: Opponents have finally filed an anticipated lawsuit challenging the Labor Department's rule to raise investment advice standards for retirement accounts, but some observers say arguments levied against the regulation are flimsy and exaggerated. Knowledgeable sources say the DOL has the authority to write rules governing who is and isn't a fiduciary in both the ERISA-plan world and IRA market.

Source: Investmentnews.com (registration may be required), June 2016

Labor Secretary Perez Defends Fiduciary Rule

Abstract: U.S. Secretary of Labor Thomas E. Perez today issued this statement regarding a lawsuit filed to stop the DOL's recently released fiduciary rule.

Source: 401khelpcenter.com, June 2016

Lawsuit Challenges DOL's Fiduciary Rule

Abstract: Retirement industry trade groups filed on June 1st a legal challenge to the Department of Labor's fiduciary rule for brokers and registered investment advisers serving Americans with Individual Retirement Accounts and 401k plans.

Source: 401khelpcenter.com, June 2016

DC Plan Sponsors -- Are You Managing Your Fiduciary Duties?

Abstract: Are you properly managing your DC plan? Here are some sample questions that you should be able to answer.

Source: Xerox.com, May 2016

Who's a Fiduciary Now? Understanding the DOL's New Definition

Abstract: The sky isn't falling, but in a very real sense the retirement world is changing with the release of the DOL's final regulation that more broadly defines who is an "investment-advice" fiduciary for purposes of ERISA. This is a 14-page review from the law firm Spencer Fane.

Source: Spencerfane.com, May 2016

SEC Plans to Propose Fiduciary Rule Next April

Abstract: The Securities and Exchange Commission plans to propose rules for raising investment advice standards and authorizing non-governmental examinations of advisers next spring (April 2017), according to its latest regulatory agenda.

Source: Investmentnews.com (registration may be required), May 2016

The DOL Fiduciary Rule, Seller's Exception and Independent Fiduciaries

Abstract: How does a service provider determine whether it is making a recommendation to "independent fiduciaries of plans and IRAs with financial expertise?" This is a key question that could determine whether an organization or individual is tagged as an ERISA fiduciary and subject to added liability as a result.

Source: Pensionriskmatters.com, May 2016

Should Advisors Ditch Their Broker-Dealers in Light of DOL Fiduciary?

Abstract: It is imperative that advisors at broker-dealers begin to consider what kind of business they want to operate in the future, and whether it's really necessary to continue offering commission-based products and deal with the additional compliance burdens, or choose to focus as a level-fee fiduciary instead.

Source: Kitces.com, May 2016

Bay State Says Full Robos Can't Be Fiduciaries

Abstract: The Massachusetts Securities Division says that robo-advisers' failure to conduct due diligence, as well as their depersonalized structure, may render them unable to provide adequately personalized investment advice and make appropriate investment decisions. As such, "the Division" has declared that fully automated robo-advisers, as currently structured, may be inherently unable to carry out the fiduciary obligations of a state-registered investment adviser.

Source: Napa-net.org, May 2016

What Plans Types Do the Final DOL Fiduciary Rule and Its Exemptions Cover?

Abstract: This question is important for financial advisers in order to understand how the new regulations affect their business. This article is not meant to give you a full understanding of the regulation and all of its requirements but more narrowly to give some background and to identify the various types of plans that are covered.

Source: Napa-net.org, May 2016

Class Actions Will Test DOL's New Fiduciary Rule

Abstract: The U.S. Department of Labor's highly anticipated final fiduciary rule, designed to help ensure Americans saving for retirement get sound investment advice, creates an opportunity for plaintiffs attorneys to test the rule's meaning by filing class action lawsuits, a Tennessee defense attorney says.

Source: Legalnewsline.com, May 2016

Interesting Angles on the DOL's Fiduciary Rule - Part #3

Abstract: The DOL's concern about the impact of incentive compensation goes beyond payments to advisers. The new fiduciary rules will impact almost every aspect of the sales of investments and insurance products to plans, and especially to IRAs.

Source: Fredreish.com, May 2016

Final DOL Fiduciary Rule has Key Implications for Asset Managers

Abstract: This 14-page white paper analyzes how the "fiduciary rule" will affect the way asset managers do business and suggests ways they can prepare themselves for the new requirements.

Source: Kasina.com, May 2016

How Phyllis Borzi Got Her Way on Fiduciary

Abstract: Phyllis Borzi was the main architect of the so-called DOL fiduciary rule, which requires financial advisers to 401k and individual retirement accounts to act in their clients' best interests. She is credited with pushing through a nearly unprecedented wall of opposition by using her moxie, her might and her friends in high places.

Source: Investmentnews.com (registration may be required), May 2016

Could Fiduciary Become the De Facto Law of the Land?

Abstract: The fight for an expanded fiduciary duty is moving to the SEC, but it by the time the regulator moves forward, it almost might not be necessary, according to fiduciary advocates.

Source: Financial-Planning.com, May 2016

House Passes Resolution Protecting Access to Affordable Retirement Advice

Abstract: The U.S. House passed H. J. Res. 88, a resolution that will block the Department of Labor's "Definition of the Term 'Fiduciary' and Conflict of Interest Rule."

Source: House.gov, April 2016

DOL New Fiduciary Regulation: Seven Action Items for the Next Year

Abstract: Despite the fact that the new DOL fiduciary rule becomes effective 60 days after the date of publication in the Federal Register, it is not applicable until April 10, 2017. That provides a full year in which to adjust to the new fiduciary investment advice landscape. Article provides a detailed review of the newest augmentation of the fiduciary rule and a short plan sponsor "to-do" list.

Source: Findleydavies.com, April 2016

Fiduciary Duty to Review Fees Goes Beyond Fee Benchmarking

Abstract: Some recent fee dispute case decisions and settlements suggest that in addition to benchmarking fees, fiduciaries may also want to periodically undertake a more thorough review by conducting a Request for Proposal process. This requires obtaining bids from third-party vendors with in-depth analysis of administration, communication, investment, and compliance services and corresponding administration fees charged.

Source: Xerox.com, April 2016

Even 'Softer' Fiduciary Rule Will Challenge Providers

Abstract: One veteran retirement plan adviser predicts the real impact of the new DOL fiduciary rule will take shape over the long-term and firms' initial attempts at compliance may not represent their final approach.

Source: Plansponsor.com, April 2016

Lawsuits Against Fiduciary Rule Likely to Cite DOL's Lack of Authority

Abstract: So far, all's quiet on the court front when it comes to the recently finalized Labor Department rule to raise investment advice standards for retirement accounts. But three groups might file a lawsuit against the rule. Based on comment letters and testimony before Congress, a court challenge will probably focus on the DOL's lacks authority to promulgate a rule that affects broker-dealers.

Source: Investmentnews.com (registration may be required), April 2016

"Excessive" 401k Fees Often in the Eye of the Fund Holder

Abstract: Practitioners, plan sponsors, and ERISA attorneys are left to wonder, absent any objective definition of "excessive" and "reasonable," does the DOL's Conflict-of-Interest Rule have any real meaning, or is it merely another potentially lucrative cash-flow stream for class action attorneys courtesy of your friendly neighborhood government regulator?

Source: Fiduciarynews.com, April 2016

Assessing the Final DOL Fiduciary Rule

Abstract: Although the final rule accommodated a few concerns expressed by commenters, according to this paper, many of the critical fixes to the Fiduciary Rule called for by the U.S. Chamber of Commerce remain unaddressed or were made worse in the final rule.

Source: Uschamber.com, April 2016

DOL Accused of "Legislation by Rulemaking" on Fiduciary Rule

Abstract: The DOL's new rule to amend the definition of fiduciary on retirement advice is "legislation by rulemaking," the former head of DOL's Employee Benefits Security Administration told senators Wednesday, with the rule that "ultimately passed" running contrary to what Congress intended when it passed ERISA.

Source: Thinkadvisor.com, April 2016

IRA Rollovers in a Post DOL Rule World

Abstract: One of the greatest fear regarding the new DOL rule will not be realized, namely that stockbrokers who currently steer their clients' assets from 401k plans to IRAs as a matter of course will now hold off on making that recommendation. Projections from Cerulli Associates suggest that the rollover gravy train will keep right on chugging.

Source: Riabiz.com, April 2016

Advisers Can't Respond Unilaterally to Final Fiduciary Rule

Abstract: A given financial adviser's response to the final fiduciary rule from the Department of Labor may have more to do with the adviser's brokerage platform provider than their own decisionmaking about how to adjust.

Source: Planadviser.com, April 2016

The DOL Final Definition of Fiduciary Rule

Abstract: This article is intended to provide a brief history of the proposal and provide an overview of the key points of the final rule and how it differs from the 2015 proposal.

Source: Benefitsbryancave.com, April 2016

Seven Reasons Why the DOL Rule Is Flawed to the Point of 'Folly'

Abstract: The only thing that is now more contentious than the back and forth leading up to the DOL passing of its new fiduciary rule is whether or not we should celebrate the moment as a milestone for fiduciaries or take a moment to relegate Labor Secretary Thomas Perez to the same place in the appeasement hall of fame as Neville Chamberlain. Don Trone shares his views.

Source: Riabiz.com, April 2016

DOL's Final Rule on the Definition of "Fiduciary"

Abstract: This is an in-depth review of the DOL's final rule regarding the definition of investment fiduciaries including potential effects on plan sponsors.

Source: Reinhartlaw.com, April 2016

Fiduciary Breaches by Others

Abstract: Fred Reish and Joan Neri Answer the question, "Am I subject to liability if I learn that a one of these committees is about to commit a fiduciary breach or engage in a transaction prohibited by ERISA?"

Source: Planadviser.com, April 2016

'Fiduciary' vs. 'Suitability'

Abstract: ERISA requires that an adviser act as a "prudent expert" when making a recommendation, while FINRA requires that the adviser "have a reasonable basis to believe" that a recommendation is "suitable." The purpose of this article is to give advisers a high-level overview of these standards of conduct and to highlight some differences and similarities.

Source: Planadviser.com, April 2016

How Will the DOL Enforce Its Fiduciary Rule?

Abstract: The enforcement impact will be most pronounced in the retail market, experts said, because individual retirement account owners will essentially become the army through which the Department of Labor wields indirect enforcement influence.

Source: Investmentnews.com, April 2016

DOL's Fiduciary Rule Garners Support, Draws Concern

Abstract: The DOL's fiercely debated final rule on conflicts of interest in retirement advice, published in the Federal Register on April 8, was welcomed by critics of the financial services industry and greeted with caution by advocates of retirement plan sponsors, who tended to express guarded relief that it wasn't worse.

Source: Shrm.org, April 2016

Advisor's Guide to DOL Fiduciary and the New Best Interests Contract Requirement

Abstract: This lengthy article provides an in-depth look at the keystone of the new fiduciary rule as it pertains to advisors working with individual retirement accounts: the new "Best Interests Contract Exemption," which most broker-dealers and insurance companies will rely upon in their future attempts to provide conflicted advice to IRAs for commission compensation, and the creation of the new "Level Fee Fiduciary" safe harbor.

Source: Kitces.com, April 2016

Managing Missing Participant Accounts and Fiduciary Responsibility

Abstract: Managing missing participant funds has been somewhat of a gray area within the retirement plan industry. But now, the DOL has decided to increase its scrutiny of benefit payment practices -- including the way plan sponsors and trustees search for missing participants and manage their unclaimed accounts -- to ensure that retirement plan trustees fulfill their fiduciary responsibilities to plan participants. This 4-page paper offers an overview and practical tips.

Source: Penchecks.com, April 2016

New Fiduciary Rule Applies Stricter Standard to Most Retirement Account Advisers

Abstract: ERISA plans should begin now to review their relationship with their current investment adviser/consultant. In conducting this review, plans should interpret the general fiduciary rule broadly and interpret any of the enumerated carve-outs narrowly. Fiduciaries should expect that advisers will provide written documentation of their role and their satisfaction of any carve-out. Plans should require advisers to indemnify the plan from any prohibited transaction that arises as a result of its failure to comply with any carve-out or exemption.

Source: Hollandhart.com, April 2016

No Reasoning Behind DOL Treatment of FIAs in Fiduciary Rule

Abstract: The future of fixed indexed annuity sales is up in the air after the Department of Labor added an unexpected wrinkle to its fiduciary rule. In the final version of the rule, the DOL peeled away FIAs' PTE exemption and classified them with variable annuities, which are considered securities.

Source: Insurancenewsnet.com, April 2016

Fiduciary Risk in Data Privacy and Cybersecurity

Abstract: Retirement plans store extensive personal data on each participant and beneficiary. This data ranges from Social Security numbers and addresses to dates of birth, bank account and financial information, and other records and is stored physically and in electronic forms for years, if not decades. Retirement plan fiduciaries must take precautions to help ensure that they have fulfilled their fiduciary duties with respect to data privacy and cybersecurity.

Source: Morganlewis.com, April 2016

DOL's Finalized Fiduciary Rule Released

Abstract: As rumored, this morning the Department of Labor finalized a rule and related exemptions that are intended to ensure that retirement savers get investment advice in their best interest -- commonly called the fiduciary or conflict of interest rule.

Source: 401khelpcenter.com, April 2016

Department of Labor Finalizes Rule to Address Conflicts of Interest in Retirement Advice

Abstract: This is a Department of Labor piece reviewing the final version of the 'Conflict of Interest' rule. Topics include, what is covered investment advice under the rule, what is not covered investment advice under the rule, Best Interest Contract, and applicability date.

Source: Dol.gov, April 2016

Chart Illustrating Changes From DOL's 2015 Conflict of Interest Proposal to Final

Abstract: Many changes were made in the final version of the DOL's 'conflict of interest' rule to clarify, streamline, and simplify the proposed rule and proposed exemptions. The following 8-page chart was produced by the DOL to shows some of the most frequently raised issues and how the they addressed them in the final rule.

Source: Dol.gov, April 2016

New Fiduciary Regs: A Win for Plan Sponsors

Abstract: The author states that the new DOL rule is aimed specifically at brokers who provide investment advice to clients under the "suitability" requirement. The issuance of these final regulations ends a long war that the brokerage industry waged against regulators, employing all manner of threats to avoid fiduciary responsibility, and spending millions on intense political lobbying.

Source: Lawtonrpc.com, April 2016

First Round of Industry Response to Final Fiduciary Rule

Abstract: Some of the biggest financial services firms and advocacy groups have registered their initial impressions of the Department of Labor's final fiduciary rule, including FSI, TIAA, FPC and others. So have a myriad of independent commentators and ancillary businesses.

Source: Planadviser.com, April 2016

Final Fiduciary Rule Includes Requested Changes

Abstract: After the better part of a decade in the making the new fiduciary rule from the Department of Labor has finally arrived, and on first review it appears to look a lot like the version proposed in the Spring of 2015, albeit with some important softening around the sharpest edges.

Source: Plansponsor.com, April 2016

Under DOL Rule, Fee-Only RIA Plan Advisors in Driver's Seat

Abstract: The steady flow of migration from the brokerage model of retirement services to the fee-based model over the past decade will clearly continue after the DOL releases its finalized fiduciary rule next week, said Skip Schweiss, managing director at TD Ameritrade.

Source: Benefitspro.com, April 2016

The Fiduciary Rule: How Long Will Compliance Take?

Abstract: The DOL expects it will take eight months, according to ThinkAdvisor, but the experts they interviewed recently beg to differ. For its part, the American Retirement Association in its comment letter to the DOL said of that amount of time, "Eight months is simply not enough time to accomplish all the due diligence that will be necessary. The proposed eight-month transition period will result in a costlier than necessary disruption to existing business arrangements."

Source: Asppa.org, April 2016

DOL's Fiduciary Rule Conflicts With Securities Laws

Abstract: A recent report by the Senate Government Affairs Committee indicates that the DOL, ignored, disagreed with, and argued forcefully with the SEC staff over its proposed fiduciary rule. According to the U.S. Chamber, here are a few of the problems with in the rule centered around securities law.

Source: Uschamber.com, March 2016

Distribution and Rollover Education

Abstract: Fred Reish write here, "A reporter recently asked me to explain why people are saying that, under the DOL's fiduciary proposal, an adviser should not recommend that a participant take a distribution and roll over to an IRA, but instead should provide distribution education. Here's my answer."

Source: Fredreish.com, March 2016

How the DOL Fiduciary Rule Will Affect Plan Sponsors

Abstract: While aimed at financial advisors, the Department of Labor's fiduciary standard rule will impact compliance obligations and costs for plan sponsors as well. Article reviews several areas that HR people need to stay on top of.

Source: Shrm.org, March 2016

DOL and SEC Opine on How Fiduciaries May React to Inside Information

Abstract: In separate amicus briefs in Whitley v. BP, P.L.C., the DOL and SEC clarify the responsibilities of a fiduciary under ERISA with control of an employee stock ownership plan, as a company stock fund investment option of a 401k plan.

Source: Groom.com, March 2016

DOL Fiduciary Rule Will Cause Retirement Plan Advisers to Outsource Liability

Abstract: Outsourced investment advisory services for 401k plans stand to reap the benefits of the Labor Department's proposed rule to raise investment advice standards in retirement accounts. The services in question are referred to as 3(21) and 3(38) fiduciary investment services, as defined by ERISA. Industry watchers expect even more uptake if the DOL rule becomes final, in part because these outsourced services tend to be used mostly in the small and micro 401k market.

Source: Investmentnews.com (registration may be required), March 2016

Plan Sponsors Face Risks in Fiduciary Rule Change

Abstract: It's not just financial advisers and investment providers that should be prepping for the final fiduciary rule to emerge from DOL, plan sponsors will likely face changes and new liabilities of their own.

Source: Plansponsor.com, March 2016

President Obama Meets With 401k Fiduciary Rule Advocates

Abstract: President Barack Obama met with financial regulators Monday to give the Department of Labor's fiduciary rule a final push before its expected passage this spring.

Source: 401kspecialistmag.com, March 2016

What's Next for Variable Annuities After DOL Fiduciary Rule?

Abstract: The variable annuity has taken its share of hits in recent years, and as the rule currently stands, the product will likely have to evolve once again in order to remain viable if the pending DOL fiduciary rule is finalized in its current form.

Source: Thinkadvisor.com, March 2016

DC Plan Re-Enrollment: A Fiduciary Imperative?

Abstract: This paper looks at the role a re-enrollment campaign can play in guiding all plan participants to an appropriate asset allocation, common reasons cited by plan sponsors for avoiding re-enrollment, and counterpoints to each, key elements of a successful implementation, and re-enrollment terminology.

Source: Russell.com, March 2016

Collective Investment Trusts: A Fiduciary Opportunity

Abstract: CITs are not new to the retirement plan industry, but many plan sponsors are once again considering them as investment alternatives. Article reviews some of the opportunities CIT afford plan fiduciaries.

Source: Manning-Napier.com, March 2016

Ryan Says "Bureaucrat Bullies" Behind Fiduciary Rule

Abstract: If you thought things were going to be quiet between now and the anticipated publication of the Labor Department's fiduciary rule next month, well, you'd be wrong.

Source: Napa-net.org, February 2016

Fiduciary Rule: No Time to Waste in Prepping for Changes

Abstract: Even as a controversial fiduciary proposal is in the final stages of the regulatory process, many advisors aren't bothering to reassess their compliance framework or lay the groundwork for the changes they will have to make in their practices when the DOL's rule becomes the law of the land.

Source: Onwallstreet.com, February 2016

Fiduciary Opponents Still Fighting DOL's Proposed Rule

Abstract: Opponents of the DOL's contentious fiduciary proposal in Congress aren't wasting any time. Less than a week after the department sent its rule outlining stricter requirements for advisors working with retirement plans and investors to the White House for a final review, lawmakers voted to pass two measures that could derail that effort on to the full House for consideration.

Source: Financial-Planning.com, February 2016

DOL Fiduciary Rule Arrives at OMB

Abstract: The DOL sent the measure to the Office of Management and Budget. The OMB has up to 90 days to review the rule, but is likely to expedite the process. After the OMB signs off, the DOL will release the final rule publicly -- perhaps as early as March and likely by April.

Source: Investmentnews.com (registration may be required), January 2016

When Will the DOL Send Its Finalized Fiduciary Rule to the OMB?

Abstract: The timing of when the OMB receives the rule is significant and the Obama administration is leaving little to chance with the Department of Labor's proposed fiduciary rule.

Source: Benefitspro.com, January 2016

RayJay CEO: DOL Fiduciary Battle Is Over

Abstract: After countless hours of lobbying, one big opponent of the DOL's plan to rein in brokers' profit from retirement accounts has thrown in the towel. Paul Reilly, chief executive of Raymond James Financial, said that there are no more political strings to be pulled before a final fiduciary rule requiring brokers to put clients' interests ahead of their own is unveiled.

Source: Advisorhubinc.com, January 2016

Congressional Action on Proposed DOL Fiduciary Rule Postponed to 2016

Abstract: As the DOL considers comments on its proposed changes to the definition of fiduciary under ERISA, an open question has been whether Congress would take action to delay or block the rule. Although several possible approaches were actively discussed, Congress ultimately did not pass any legislation in 2015. But these approaches remain open for 2016.

Source: Morganlewis.com, December 2015

The Case for Why the DOL Fiduciary Rule Won't Kill IRA Rollovers

Abstract: Some in the financial industry to claim IRA rollover activity would slow down if the DOL's fiduciary rule is adopted, as brokers currently held to a less-stringent suitability standard of care would abandon prospecting IRA rollover business from 401k plans to avoid liability risks and regulatory costs. Others believe the effect would be minuscule.

Source: Investmentnews.com (registration may be required), December 2015

Fiduciary Standards for ESG Funds

Abstract: Over the decades, Republican and Democrat administrations have engaged in periodic tightening and loosening of the rules governing the extent to which fiduciaries may take environmental, social and governance (ESG) factors into account in making investment decisions. This puts fiduciaries in a difficult position whenever the rules change, as they recently have again.

Source: Planadviser.com, December 2015

Lawmakers Throw Hail Mary to Thwart DOL Fiduciary Rule

Abstract: Bipartisan lawmakers introduced bills Friday that would stop a Labor Department proposal to strengthen investment advice rules for retirement accounts and replace it with a standard written by the legislators.

Source: Investmentnews.com (registration may be required), December 2015

DOL Fiduciary Rule Survives Best Opportunity to Kill It

Abstract: The DOL rule to amend the definition of fiduciary for retirement advice survived one hurdle late Tuesday as the omnibus spending bill did not include riders requiring the rule to undergo another comment period or to defund the rule. The rider may have been opponents' best opportunity to kill the rule before it was completed.

Source: Thinkadvisor.com, December 2015

Congress Fails in Effort to Slow Fiduciary Rule Process

Abstract: Congress reached an agreement on a budget deal that did not include riders that would have changed the process of the Department of Labor’s proposal to change the definition of fiduciary advice under. There are rumors that the DOL's final rule will be issued as early as January 2016.

Source: Planadviser.com, December 2015

Fiduciary Responsibilities in 403(b) Plans

Abstract: Of non-profit organizations that sponsor 403(b) retirement plans, only 60 percent are reviewing and evaluating the investment options in their plans, according a new survey from the Plan Sponsor Council of America that explores retirement plan trends among non-profit organizations.

Source: Psca.org, December 2015

Institutionalizing DC Plans Can Add Fiduciary Protection

Abstract: The institutionalization of defined contribution plans is gaining traction, and is yet another way plan sponsors can achieve their fiduciary responsibilities, experts say.

Source: Plansponsor.com, December 2015

DOL Fiduciary Rule Under Two-Pronged Congressional Attack

Abstract: House lawmakers are taking a two-pronged attack in an attempt to prevent the Department of Labor from finalizing its proposed conflict-of-interest rule: by throttling the DOL's funding and by introducing their own "best interest" financial advice bill.

Source: Bna.com, December 2015

Fiduciary Skill Critical to Plan Distribution Success

Abstract: ERISA attorney outlines key fiduciary responsibilities related to retirement plan distributions and rollovers. A new whitepaper by Fred Reish argues participant education and sponsors' fiduciary knowledge are both critical to plan distribution success.

Source: Planadviser.com, December 2015

DOL's Fiduciary Exemption Is Not a Workable Option for Advisers

Abstract: Despite months of media attention and frequent discussion within our industry, many financial advisers are only beginning to grasp the implications of the Labor Department's effort to expand its definition of fiduciary under ERISA.

Source: Investmentnews.com (registration may be required), December 2015


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