"[P]lan fiduciaries are still bound by ERISA's duty of prudence and should take into account the nature and quality of services that will be provided in connection with the brokerage window, and whether to offer the window at all. The DOL's recent commentary regarding cryptocurrency in the brokerage window may be suggesting that the fiduciaries also have duties regarding the design of the window and imposition of limits on available investments."   MORE >>

"Brokerage windows historically have been mostly off-limits to DOL regulators -- the product of an unofficial covenant between the government and plan sponsors that keeps employers off the hook for poor investments and lets workers steer their own investments inside tax-advantaged plans. That could change with the [DOL's] new playbook for cryptocurrency in 401(k)s."   MORE >>

"[T]he U.S. Court of Appeals for the Third Circuit has held that, under [the Multiemployer Pension Plan Amendments Act of 1974 (MPPAA)], a MPPAA employer includes any entity that is obligated to contribute to a plan as either a direct employer or in the interest of one. Adopting this consensus definition of other circuit courts, the court upheld a potential withdrawal liability award in an amount more than double the amount the contractor earned for seven-plus years' work on the related project." [ J. Supor & Son Trucking & Rigging Co. v. Trucking Emps. of N. Jersey Welfare Fund , No. 20-3286 (3d Cir. Apr. 5, 2022)]   MORE >>

"One feature of the bill that should be concerning to plan sponsors of multiemployer plans is the mandatory automatic enrollment provision in 401(k) Plans. While this is a laudable provision and is much needed as it will get more Americans to save for retirement, it would create significant issues from an administration perspective for a majority of multiemployer plans."   MORE >>

"Businesses that provide recordkeeping services to defined contribution retirement plans are merging at a dizzying rate. What considerations should plan sponsors resolve when a competitor or aggregator acquires their recordkeeper or third-party administration firm?"   MORE >>

20 pages. "Defined contribution (DC) plan withdrawal activity in 2021 remained low, although it was slightly higher than the activity observed in recent years.... Only 2.2 percent of DC plan participants stopped contributing in 2021, compared with 2.3 percent in 2020 and 3.4 percent in 2009.... At the end of December 2021, 12.5 percent of DC plan participants had loans outstanding, compared with 14.8 percent at year-end 2020, and 16.1 percent at year-end 2019."   MORE >>

"[A]ny regulation of fiduciary investment decisions should be neutral with respect to the type of investment and instead focus on a prudent process. By singling out cryptocurrency for investigation and stating that fiduciaries must be prepared to 'square their actions' of permitting cryptocurrency investments with their duties of prudence, EBSA is at best putting a chilling effect on such investments and at worst condemning them.... EBSA's warning that plan fiduciaries that 'allow' cryptocurrency in brokerage windows will need to square that with their duty of prudence not only is contrary to how brokerage windows have been treated in the past, but likely impossible to defend."   MORE >>

"[We] are troubled by what we perceive to be a trend at EBSA away from rulemaking based on a robust notice and comment process, including review by the Office of Information and Regulatory Affairs (OIRA). We are very aware that the line between helpful sub-regulatory guidance and indirect rulemaking is not a clear one. But we respectfully suggest that recent sub-regulatory guidance has been more in the nature of rulemaking in need of notice and comment and OIRA review, such as with respect to recent best practices guidance."   MORE >>