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ERISA?s Fiduciary Rule: What?s New and What?s Next
March 22, 2018 WEBCAST
Knowledge Group

2018 National Conference
June 14, 2018 in MD
SPARK [Society of Professional Asset Managers and Record Keepers]

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Fifth Circuit Vacates DOL Fiduciary Rule
"In addition to its finding that the rule 'conflicts with the statutory text,' the court found that the fact 'that it took DOL forty years to 'discover' its novel interpretation further highlights the Rule's unreasonableness.' ... As a legal matter, the Fifth Circuit's decision means that the pre-April 2016 five-part rule for determining when a person becomes an ERISA advice fiduciary 'snaps back' into effect. The critical question the Fifth Circuit's decision raises is: what will be DOL's response?" [ Chamber of Commerce of the United States of America, et al. v. DOL , No. 17-10238 (5th Cir. Mar. 15, 2018)]
October Three Consulting

ERISApedia.com ? Who is Answering Your ERISA Questions?

Noted author and speaker S. Derrin Watson, J.D. is now answering questions in our Ask the Author service. Get your answers from Derrin in four business hours or less. Contact us at sales@ERISApedia.com or 612-605-2266.

Court of Appeals Decision on Fiduciary Rule Changes the Legal Landscape and Creates Uncertainty
"A day after the decision the DOL announced that it would not enforce the Fiduciary Rule 'pending further review.' This may mean very little. The DOL ... was not expected to begin significant enforcement activity until it had completed the review of the Fiduciary Rule mandated by President Trump in early 2017. Moreover, the DOL's decision to suspend enforcement is not binding on states ... or private parties." [ Chamber of Commerce of the United States of America, et al. v. DOL , No. 17-10238 (5th Cir. Mar. 15, 2018)]
The Wagner Law Group

Did the Fifth Circuit Kill the DOL Fiduciary Rule?
"At the very least, the decision means that neither the DOL nor private individuals can enforce these regulations in the courts located in the 5th Circuit. However, ... other courts, most particularly the 10th Circuit Court of Appeals ... which acted two days before the 5th Circuit -- have upheld the Fiduciary Rules.... If you are located within the 5th Circuit, you may want to refrain from relying on the level compensation exemption for rollover advice if you are a fiduciary to the plan."
Ferenczy Benefits Law Center

Expert Q&A on Fifth Circuit Fiduciary Rule Decision
"What happens next with the case? ... How does this decision compare with other recent decisions? ... What should fiduciary investment advisors and practitioners do now? ... What are the chances the Supreme Court agrees to rule on the fiduciary rule? ... Where does the rule stand if the DOL chooses not to contest the decision?" [ Chamber of Commerce of the United States of America, et al. v. DOL , No. 17-10238 (5th Cir. Mar. 15, 2018)]
Thomson Reuters Practical Law

SEC Forging Ahead on Fiduciary Rule Despite Decision in Fifth Circuit
"[SEC] Chairman Jay Clayton said [March 19] that the agency is moving forward on a fiduciary rule and its work would not be affected by a court decision last week that struck down a similar [DOL] regulation.... The SEC rule is expected as early as this summer."
Pensions & Investments

Unmask Benefit Plan Cost Drivers and Compliance Issues!

99% of past attendees recommend you attend the New Orleans MidSizedConf! This executive education program, presented by UNC's Kenan-Flagler Business School, addresses an array of benefit plan management issues. View the schedule & register today !

Blueprint for a Universal Fiduciary Standard of Care in the U.S. Financial Services Industry (PDF)
47 pages. "What might universal, or at least harmonized, fiduciary standards of care look like? The blueprint can be drawn by answering certain key questions ... but the short version is that the U.S. needs to choose between two primary models: the ERISA/DOL prohibited transaction model or the common law fiduciary model. And if, as seems likely, both models will continue to coexist, the three pivotal issues for harmonization will be the battle over the regulation of advice to IRA owners and beneficiaries, how conflicts of interest are handled, and who is considered to be a fiduciary."
Pentegra, via Proceedings of the New York University Review of Employee Benefits and Executive Compensation - 2017

Prudential, Morningstar Beat Robo-Adviser Lawsuit
"The lawsuit seeks to represent up to 5 million investors in 'hundreds' of retirement plans that used the GoalMaker robo-adviser designed by Morningstar and offered by Prudential. The investor who filed suit says the defendants tweaked GoalMaker to intentionally steer people toward higher-cost funds that earned extra fees and kickbacks for Prudential."
Bloomberg BNA

Priorities of 401(k) Stakeholders Not Always in Sync
"New research reveals that there are surprisingly different perspectives among plan sponsors, recordkeepers and plan participants regarding the top priorities in evaluating the success of a 401(k) plan.... The goal of improving the quality of the investment lineup apparently was the largest discrepancy.... The second largest gap between sponsors and recordkeepers relates to addressing fiduciary risk.... [P]lan sponsors may need to pay greater attention to metrics that relate to decumulation when gauging plan success."
National Association of Plan Advisors [NAPA]

Retirement Plan Changes from the Tax Cuts and Jobs Act Are Trivial ... Right?
"With new tax rates at levels we may never see again, it may be a good time for plan sponsors to take a fresh look at their plan designs. Start by asking if your plan is effective at promoting retirement savings and helpful in keeping and attracting skilled talent. In particular, sponsors of 401(k) plans might review the success of their plan features by looking at their employee participation and savings rates."
ORBA

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Review Your QDRO (PDF)
"Employers tend to favor the Working Spouse at the expense of the Non-working Spouse ... The information they provide is often inadequate and out of date.... Marital partners should question results not provided by a qualified pension actuary.... Many employees do not realize they are covered by a tax qualified retirement plan from past or current employment, including self-employment, subject to QDRO requirements ... [S]teps to help assure proper QDRO preparation for a new or amended QDRO [are listed]."
H.C. Foster and Company

Washington Retirement Marketplace Now Available for Small Business Owners and Individuals
"Each plan listed on the Retirement Marketplace meets strict criteria established by the Washington State Legislature: [1] Must first be reviewed by officials at the Department of Financial Institutions and/or the Office of the Insurance Commissioner. [2] Cannot charge administrative fees to employers. [3] Cannot charge enrollees more than 1 percent in total annual administrative fees. [4] Must go through an annual renewal process to ensure the plan and provider remain in good standing. Participation in the Retirement Marketplace is voluntary for both employers and employees."
Washington State Department of Commerce

Senate Lost and Found Bill Would Help Many Retirees But Would Harm Others
"If the Warren-Daines bill is enacted in its current form, not only could [DOL] investigations into ongoing plans be halted, but plans may be able to replace the current [DOL] and IRS standards for locating missing participants with the inadequate search criteria in this bill. As a result, many more retirees and their beneficiaries will not receive their earned benefits and will have a far less secure retirement."
Pension Rights Center

What Must Be in a Summary Plan Description for the 'Average Plan Participant'?
"The SPD did not 'minimize[], render[] obscure,' or otherwise make the Work Incentive Benefit offset to be 'unimportant.' ... The SPD described the Benefit and its offset in 'the same style, typeface, and type size as the rest of the SPD and [those descriptions] are located 'in close conjunction with' the description of the plan's benefits.' ... ERISA does not require that the Benefit be given 'special emphasis or [be] mentioned more than once in the SPD.' " [ Abrams v. Life Ins. Co. of North America , No. 16-55858 (9th Cir. Mar. 7, 2018; unpub.)]
Lane Powell PC

Using Executive Benefit Plans to Attract Reward and Retain Top Talent (PDF)
"Since nonqualified plans are not subject to the same regulatory requirements that apply to qualified plans, employers can provide benefits through nonqualified plans to recruit and retain key employees who cannot be fully compensated through a combination of salary and qualified plans due to the cost and compliance burdens that arise when similar benefits are provided to all employees."
Pentegra, via Plan Consultant

Refusal to Participate in DC Plan for Religious Reasons
A participant in a DC plan refuses to have either an employee or an employer account. This may have to do with religious reasons against interest-bearing accounts. The plan is not top heavy, but it's a 3% SHNEC. He did not sign a waiver prior to becoming eligible in the plan. How to resolve this?
BenefitsLink Message Boards

'We Made Changes to Your Form 5500'
Client got a CP 220 notice stating the IRS made changes to their return and owes $2,200+. Of course no changes are specified or the reason for the penalty. (It reads like a scam.) I saw an earlier thread on this and realize it's probably for a "late" filing...but this was a 201 1 return, filed Oct 15, 2012. We didn't handle the plan at the time, so don't have proof of filing the extension and doubt we can get it, but I think we can beat the rap; just looking for the fastest way to do so -- does(n't) the statute of limitations cover this?
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Barbara Porter and Susan Gunn join EY?s People Advisory Services EY

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