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COLLECTED WISDOM™ for Plan, Retirement, and Investment Committees

Most would agree the plan fiduciaries must establish investment and plan committees that will clearly define a process of plan administration. However, the only thing worse than not having a committee is having one that doesn't know what it's doing or never follows its own rules. Learn more from these resources.

This archive contains not only the most current material on the topic, but also older items that are still relevant, provide background, perspective or are germane to the topic.

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Other topical areas you may find of interest that are not fully covered here include ERISA 404(c) Compliance and Fiduciary Duty and Fiduciary Responsibility and Liability Issues.

TDF Fiduciary Hygiene: An Appropriate IPS, Customized Benchmarks, and Thorough Committee Minutes

On May 20, 2024, the United States District Court for the Northern District of California dismissed the plaintiffs' complaint in Bracalente v. Cisco Systems, Inc., holding that defendant Cisco did not violate ERISA's prudence requirement in selecting (and retaining) a suite of BlackRock target-date funds as the Cisco 401k plan's qualified default investment alternative. This article reviews the court's decision, highlighting three issues of practical significance for sponsor fiduciaries.

Source: Octoberthree.com, June 2024

What the Fiduciary Rule Means for Investment Menu Advisement

The Retirement Security Rule, finalized in April by the DOL, will require that investment menu designs and sales must follow the obligations of loyalty and prudence under ERISA. Previously, transactions of this kind were often considered one-time transactions and therefore not a fiduciary act. Jason Roberts, the CEO of the Pension Resource Institute, says that this element of the final rule should be an "easy lift from a compliance perspective" and "less disruptive operationally" for retirement plan advisers and providers.

Source: Planadviser.com, May 2024

DOL Expands Investment Advice Subject to Fiduciary Liability

Following previous failed attempts to expand the fiduciary liability of financial services providers, the DOL released a new rule that broadens the definition of fiduciary under ERISA. Plan sponsors should review their service agreements and reach out to their financial services providers to ensure that they come into compliance with the new rule, including full disclosure of any potential conflicts of interest.

Source: Pillsburylaw.com, May 2024

Investment Menus and Fiduciary Considerations

Plan Sponsors have a fiduciary duty to select and monitor investments in a retirement plan. Ensuring that an investment menu is cost-efficient and appropriate for the given employee population is a large component of this responsibility. The wide array of available investment options and complex fiduciary requirements can make this challenging. In particular, it may be difficult to determine whether adding a new trending asset class makes sense for a retirement plan and its participants, or whether it is more prudent to steer clear.

Source: Spconsultants.com, April 2024

ESG in 401k Plans in the Wake of Spence v. American Airlines, Inc.

Whether investment decisions for pension, 401k, and other plans covered by ERISA should be influenced by environmental, social, and governance factors has become a flashpoint, and, unlike most ERISA issues, the controversy extends into the political arena. The recent opinion of a federal district court denying a motion to dismiss claims that ESG factors were improperly applied for 401k plan investments shows that ESG can bring risk to fiduciaries, even if they are not pursuing ESG strategies.

Source: Ktslaw.com, March 2024

Core Menus Need to Evolve

The role of the core investment menu in defined contribution plans has changed considerably over the last decade, as qualified default investment alternatives, particularly target-date funds, now capture more plan sponsor attention and participant assets than ever. This evolution requires plan sponsors and consultants to revisit key assumptions about optimal core menu design, especially as plan sponsors increasingly seek to retain participant assets during retirement, since older participants are more likely to use the core menu and invest conservatively.

Source: Planadviser.com, March 2024

Don't Set It and Forget It: Keeping up Your Fiduciary Committee

It's a perfect time to think about an issue that might get lost in the summertime and year-end shuffles: fiduciary committees. Having a committee isn't a set-it-and-forget-it situation, it requires regular action to ensure the committee is properly undertaking its role as a plan fiduciary. Here are some best practice items committees should consider annually.

Source: Benefitslawadvisor.com, March 2024

Understanding Investments and Fees: A Key Part of Plan Committee Education

As retirement plan litigation has become more commonplace, plan committee members need to be prepared to defend themselves in case they are ever in a court situation. Many retirement plan lawsuits involve questions regarding plan investment and other fees, as well as the reasonableness of those fees. Therefore, educating plan committee members about investments and the importance of benchmarking investments and costs is a crucial part of fiduciary training, experts say.

Source: Plansponsor.com, February 2024

How to Teach Fiduciary Responsibility to Plan Committees

Sponsors of retirement plans, especially those covered by ERISA, must ensure their retirement plan committee members are trained to understand and execute their fiduciary duties. To do so, plans find fiduciary education and training from regulators, existing providers, and a wide variety of sources.

Source: Plansponsor.com, February 2024

When and Why a Second Retirement Plan Committee Makes Sense

Designing a retirement plan structure that ensures efficient decision-making and smooth execution of initiatives is crucial for employers, but that ideal plan structure depends on many factors, including an organization's size and needs. While some organizations have a single retirement committee that covers decisions about the plan's investments and administrative matters, others divide the tasks among two committees.

Source: Plansponsor.com, February 2024

Maintaining Successful Committee Requires Continuous Education, Right People

Members of a retirement plan committee serve a critical role in the decision-making process of any company's benefits program, from investment lineup decisions to provider partnerships and, ultimately, upholding ERISA. Not only are committee members key decision-makers, but they are also fiduciaries and must ensure prudent management of the plan. As a result, ongoing education and training for plan committee members are vital, as they must understand the requirements of ERISA, litigation trends, the importance of documentation, and much more.

Source: Plansponsor.com, February 2024

How to Have a Successful 401k Committee Meeting

As a member of a 401k committee, you have a crucial responsibility to ensure that your company's retirement plan functions optimally. One of the key ways to achieve this is by holding regular committee meetings to review and make decisions on various aspects of the plan. However, holding a successful committee meeting takes more than just showing up and discussing topics. This article provides some tips on how to have a successful 401k committee meeting.

Source: Cuiwealth.com, January 2024

Cultivating Retirement Success: Streamlined Best Practices for Committees

This guide seeks to describe, in simplified terms, the practices of effective and efficient retirement plan committees. It reflects experiential and industry knowledge of how retirement plan committees can be an outstanding vehicle for the successful execution of a plan sponsor's fiduciary duties.

Source: Multnomahgroup.com, January 2024

Plan Sponsors Should Be Intentional When Adding Managed Accounts

Managed accounts are growing in popularity. According to data from retirement consultant Mercer, 48.8% of defined contribution plans offer a managed account solution to plan participants, a figure that has grown by 9% over the past five years. Despite the uptake in adoption, there are still many questions that have to be answered to implement a managed account offering effectively and to be able to measure it over time.

Source: Plansponsor.com, January 2024

Fiduciary Excellence 101: Best Practices for Committee Success

A practical aspect that is sometimes overlooked or unconsidered to a meaningful degree is the committee structure; more specifically, whether the committee size is positioned for successful decision-making. That is the focus of this article.

Source: Americantrust.com, December 2023

Incorporating Alternatives Into DC Plans Brings Challenges, Opportunities for Plan Sponsors

While plan sponsors face challenges to including alternative investments among their defined contribution plans, as well as legal barriers to providing access, researchers at the Defined Contribution Institutional Investment Association Academic Forum last week argued that these illiquid asset classes provide participants a significant opportunity for growth.

Source: Plansponsor.com, December 2023

How to Make Your Retirement Plan Committee Better

To function as a successful 401k or 403b plan sponsor, you need a retirement plan committee that helps your company organize and administer your plan. While ERISA does not require the committee itself, committee members can keep your organization in compliance with all established regulations. To help you get the most out of your retirement plan committee, here are several strategies for your consideration. Implementing any or all of them could enhance your retirement plan committee's performance.

Source: Planpilot.com, November 2023

Crypto Remains Massive Compliance Risk for Retirement Fiduciaries

On November 20, the Securities and Exchange Commission charged Kraken, a crypto exchange, for operating as an unregistered securities exchange. This prompted Wagner Law Group partner Kimberly Shaw Elliott to caution fiduciaries of the risks of crypto assets, given their compliance issues. The Department of the Treasury issued a record-breaking multi-billion dollar fine against Binance Holdings Ltd., a crypto exchange, the next day, further compounding the fiduciary risks of crypto assets.

Source: Planadviser.com, November 2023

Investment Committee Best Practices: If a Prudent Decision Was Made and No One Documented it, Did it Happen?

Engaging in prudent behavior is only the first step a plan fiduciary should take, however. Equally important is for the plan fiduciary to be able to demonstrate at a future date when that decision-making process might be called into question that the fiduciary engaged in a prudent process. This article provides some recommendations and insights on committee best practices.

Source: Graydon.law, October 2023

Retirement Plan Investment Menu: Taking a look Into the Industry Average

Plan Sponsors want to know how their menu looks compared to peers. There are two primary reasons for this. First, a retirement plan is used as a retention tool and sponsors want to make sure they are competitive with their offering. Second, sponsors have a fiduciary responsibility and want to be in line with industry standards. This article highlights a few aspects of the menu that are not only interesting but important considerations for a fiduciary.

Source: Conradsiegel.com, September 2023

May Climate Funds Be Used in DC Plan Menus?

Yes, as long as they don't come at the cost of participants' investment outcomes, according to Wagner Law Group. The Wagner Law Group published a legal opinion letter outlining how and when fiduciaries for defined contribution plans can consider "climate-aligned" funds in investment menus. The letter was written on behalf of Impact Experience, a nonprofit and advocate for sustainable investing.

Source: Planadviser.com, September 2023

Process Prevails in ERISA Excessive Fee Bench Trial

Following a three-day bench trial in a class action accusing B.Braun Medical Inc. and its 401k plan committee of imprudently allowing excessive record-keeping fees and high-cost investments, a Pennsylvania district court found that the committee's conduct was objectively prudent in its monitoring and selection of investment funds and record-keeping fees. This bench trial victory for Braun clearly demonstrates that prudent plan governance is the best line of defense when confronted with plaintiff litigation.

Source: Cohenbuckmann.com, August 2023

Plan Committees Need Consistent Focus on Cybersecurity

Retirement plans are a target today because that is where so much wealth is held by American savers. Therefore it is crucial for retirement plan committees -- and their advisers -- to engage in cybersecurity discussion and reviews as an ongoing part of their work.

Source: Planadviser.com, June 2023

Advisers Managing Heightened Retirement Plan Committee Turnover

Retirement and investment committees are crucial for advisers in moving ahead with plan approvals, investment menu changes, or new participant offerings. Even so, advisers are sometimes the last to know when a committee member moves on. With job turnover rates remaining high, advisers discuss how to manage retirement plan committee churn.

Source: Planadviser.com, May 2023

More Legal Counsel Crashing Retirement Plan Meetings, Callan Survey Shows

According to an annual survey by defined-contribution plan consulting firm Callan, there has been a sharp rise in the presence of legal counsel at DC committee meetings, with internal lawyers attending meetings at 49% of the companies in 2022, up from 11% in 2017, and external counsel attending meetings at 36% in 2022, up from 21% in 2017.

Source: Investmentnews.com, April 2023

Plan Committee Turnover Creates Risks

The Great Resignation is increasing plan committee turnover. Members of plan committees also change due to retirements, death, and corporate mergers and acquisitions. The increase in ERISA litigation can additionally deter members from wanting to continue to serve on committees. Committee turnover can make inadvertent errors and less than optimal decision-making more likely.

Source: Pionline.com, February 2023

DOL's New Rule on ERISA Investment Duties and Its Relationship to ESG

The new rule guides the fiduciary duties of prudence and loyalty as they apply to the selection of plan investments. The clearest path to adopting an ESG investment or option, safely and without unnecessary legal risk and uncertainty, is to do so for the express purpose of maximizing risk-adjusted financial returns and to contemporaneously document the reasons for that determination.

Source: Cov.com, December 2022

Retirement Plan Committee Best Practices

Each time the retirement plan committee meets, does it feel like there is a new rule or legislation your plan is required to comply with? While at the same time, participants are demanding more of you and your organization to be successful because the defined contribution plan is likely the only savings vehicle these individuals will ever have for retirement. If these feelings resonate with you, so will the committee best practices we discuss in this guide. This paper will help you understand what ERISA (and similar state laws) requires for plans, how committees have typically functioned, and how committees will need to function to be successful and sustaining for years to come.

Source: Multnomahgroup.com, November 2022

Practical Tips for Plan Sponsors and ESG Investments

Regulatory and legislative developments continue to accelerate around investments incorporating ESG factors into retirement plans. Plan sponsors and fiduciaries should take note of the fast-changing landscape when selecting and monitoring investment options. Groom Law Group's Jacob Eigner outlines what asset managers need to know about incorporating ESG factors in their investment processes. This includes compliance steps and how firms can build processes to avoid lawsuits from stockholders and the government.

Source: Bloomberglaw.com, September 2022

What You Need to Know About Retirement Plan Committees

Being a retirement plan sponsor can be a bit overwhelming, but a retirement plan committee can be an effective method of managing a retirement plan. Like any tool, a plan committee must be used correctly. This article is about how a plan sponsor can delegate to their retirement plan committee and some of the things they should avoid.

Source: Jdsupra.com, August 2022

Risk Literacy and Why Your Committee Should Consider It

This article offers insight into the complex topic of the various risks DC plan participants face. It also challenges traditional thinking about risk, which often oversimplifies risk as a single category and underestimates the impact various risks have on retirement outcomes. The author believes plan sponsors would do well to deploy time toward "risk literacy" and understand the various risks their participants face as they make critical plan oversight decisions. Risk literacy will help committees prioritize the way they spend time and inform key decision-making.

Source: Planpilot.com, August 2022

401k Plans and Crypto

Due to the growing popularity of and attractive returns on cryptocurrencies, 401k participants are urging plan fiduciaries to permit these investments. However, crypto investment can be an unpredictable ride. Whether this volatility can be squared with fiduciary duties imposed by ERISA needed clarification. ERISA's fiduciary duties have been described as the "highest known to the law." Fiduciaries wrestle with related issues including: Should crypto be part of the core investment menu available to all plan participants? Do fiduciaries have an obligation to limit crypto investment even in a plan's self-directed brokerage option?

Source: Fisherphillips.com, July 2022

Crypto in 401k Plans: a Plaintiff Lawyer's Dream?

The prospect of 401k plans adding cryptocurrency to their plan menu is like waiting for "fruit to ripen," according to a plaintiff's lawyer who spoke as part of a July 26 "Lessons from Litigation" panel at the 2022 NAPA D.C. Fly-In Forum. Attorney Mark Bokyo, a Partner with Bailey Glasser LLP, explained that anything which exposes participants to that level of risk, particularly when there's no real way to measure expected return moving forward, is not something that he would put in his plan. "I think the DOL's publicly stated position was carefully worded to just say, 'Hey, do your jobs if you're going to consider adding this.' The fact that participants want it is not a reason to do so any more than adding a lottery ticket fund would be," he noted.

Source: Napa-net.org, July 2022

Hughes v. Northwestern University: A Message to Fiduciaries From the Supreme Court

"That reasoning was flawed." With those four words, the Supreme Court of the United States reaffirmed that retirement plan fiduciaries' responsibilities apply independently to each investment option. Offering a lot of investment options does not eliminate the responsibility related to each of them. Offering some cheap investment options does not excuse expensive ones. Offering some stronger performers does not excuse poor performers. The bad stuff is not okay simply because there's also some good stuff. This 12-page paper underscores why plan fiduciaries must take notice of this ruling.

Source: Qualifiedplanadvisors.com, July 2022

Congressional Research Service Report: Cryptocurrency in 401k Retirement Plans

Digital assets, which include cryptocurrencies, crypto-assets, or digital tokens, among others, are digital representations of value and are issued and transferred using distributed ledger or blockchain technology. Bitcoin, Ethereum, and Dogecoin are among the most well-known cryptocurrencies. A November 2021 Pew Research Center and a March 2022 NBC News poll found that around one-fifth of Americans indicated that they had invested, traded, or otherwise used cryptocurrency. In recent months, policymakers have paid increasing attention to the prospect of defined contribution pension plan participants being able to invest in cryptocurrency.

Source: Congress.gov, July 2022

Cybersecurity in the Committee Room

Cybersecurity is not merely a technology issue. For that reason, fiduciary committees must understand they have a legal duty to protect the personally identifiable information, personal health information, and assets of their employee benefit plans from exposure and to protect electronic systems from exploitation by hackers. Read how some fiduciary committees address the challenge.

Source: Rolandcriss.com, July 2022

Key Considerations for Committees Seeking DC Plan Help

Plan sponsors have the tremendous responsibility of being stewards of DC plan assets on behalf of their participants. Adding to the level of responsibility is the increased fiduciary scrutiny of legislators and regulators, as well as the ongoing evolution of the retirement landscape. It is no wonder that nearly 59% of plan sponsors use an advisor. This article offers a series of themes to help committees assess a DC plan consultant partner and select one that will enhance your plan's oversight activities.

Source: Planpilot.com, May 2022

Collective Investment Trusts and Good Governance Considerations/a>

This 14-page paper explores relevant portions under each of the three legs of the regulatory triad. In particular, it examines the regulatory emphasis on the central role that good CIT governance -- in the form of well-designed and implemented bank-maintained processes and procedures -- plays in the ongoing management and operation of CITs. It also addresses and discusses how regulatory considerations inform CIT governance policies and may be reflected and implemented through good governance practices.

Source: Wilmingtontrust.com, March 2022

What Trends Are Impacting DC Plan Investment Menus?

NEPC is out with its 2021 Defined Contribution Plan Trends and Fee Survey, examining current plan investment trends and innovations across major sectors. While target-date funds continue to be the "turnkey solution," NEPC notes that one of the more prominent developments is that menus are moving toward index funds. In 2021, 44% of respondents had plan assets invested in TDFs, compared with 28% in 2011. In addition, 97% of plans offer TDFs and 95% of 2021 respondents are using TDFs as the plan default.

Source: Asppa.org, March 2022

DOL Warns 401k Plans Against Allowing Crypto Investments

The DOL is warning 401k plan fiduciaries to "exercise extreme care" before considering whether to include a cryptocurrency option in a plan investment menu. The sternly worded guidance, in Compliance Assistance Release No. 2022-01, published March 10, reveals heightened skepticism of 401k cryptocurrency investments and predicts new DOL enforcement activity for fiduciaries who permit participants to invest in cryptocurrencies.

Source: Shrm.org, March 2022

DOL Threatens to Investigate Fiduciaries Over Cryptocurrency in 401ks

Compliance Assistance Release No. 2022-01 is a significant departure from DOL's established regulatory norms. The author states that they are not aware of any other instance in which DOL has made such sweeping statements about the potential prudence of an entire asset class. DOL has recently elected to back away from proposals to create special standards for specific asset classes. However, in the Release, DOL implies that the agency will presume that fiduciaries making cryptocurrencies available have acted imprudently.

Source: Groom.com, March 2022

DOL Issues Big Caution on Crypto

The DOL has published compliance assistance for 401k plan fiduciaries considering plan investments in cryptocurrencies, in an effort aimed at protecting the retirement savings of U.S. workers. Compliance Assistance Release No. 2022-01 cautions plan fiduciaries to exercise extreme care before they consider adding a cryptocurrency option to a 401k plan's investment menu for plan participants.

Source: Asppa.org, March 2022

Alternative Investments in Participant Directed Individual Account Plans: The Treatment of Private Equity Sleeves

While the plan asset issue continues to be a significant one concerning investments in private equity funds, recently the focus has been upon offering private equity funds as a part of an asset allocation fund, an issue that had been addressed both by the Department of Labor and a California federal district court on multiple occasions, as discussed here.

Source: Wagnerlawgroup.com, March 2022

Are DOL ESG Tactics Backfiring With the 401k Fiduciary?

What the DOL's new ESG rule doesn't do is solve the real problem with ESG, namely that there's no consensus on what it means. This can have ramifications for plan sponsors and all 401k fiduciaries. Because of this, many are asking, will fiduciary liability increase?

Source: Fiduciarynews.com, March 2022

The Investment Policy Audit

Not to be confused with a financial audit performed by a Certified Public Accountant, an audit of an IPS examines the execution of the process defined in the IPS but does not address investment or financial outcomes. While the extent of the controls over the investment decision-making practices of fiduciary committees differs somewhat among ERISA plan sponsors, the tests applied to each evaluation focus on standard criteria in an audit. Those criteria include due diligence concerning the selection of money managers, adherence to the IPS specifications, and documentation of the monitoring activities.

Source: Rolandcriss.com, February 2022

DC Plan Investment Menu Evolution Continues

One telling stat identified in new NEPC research is that managed account adoption has remained stagnant for several years now, while index-based target-date funds have grown in popularity.

Source: Planadviser.com, February 2022

Alternative Investments in DC Plans

This comprehensive overview, in slide-deck format, covers the investment case for private real estate, hedge funds, and private equity, with a focus on what's new in terms of the offerings available for each type of alternative and how can each type of alternative add value as an investment in a DC plan? It also examines related opportunities, considerations, and challenges. The final pages cover potential next steps for fiduciaries interested in implementing alternatives.

Source: Asppa.org, February 2022

Supreme Court Clarifies ERISA Fiduciary's Duty of Prudence

The decision in Hughes makes clear that merely providing investors with a broad menu of investment options does not excuse a fiduciary's allegedly imprudent decisions. A retirement plan that includes prudent investment options alongside imprudent options may be insufficient because a fiduciary must protect investors by continually monitoring and removing those imprudent investments. This duty is not discharged simply because investors have the choice to select their investments.

Source: Paulweiss.com, January 2022

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