"The Amendment will make the QPAM Exemption more difficult to rely upon, and, as a result, fewer asset managers may be able to qualify as QPAMs ... A one-time notice to DOL may not be a difficult condition, but overlooking this condition or failing to update the notice in a timely manner when an entity changes its name could result in the QPAM Exemption not being available. The notice requirement effectively eliminates the ability of advisers to rely on the QPAM exemption retroactively[.]"   MORE >>

"Although certain private funds may be structured to avoid holding 'plan assets,' ... those funds may have agreed in a contract ... to utilize the QPAM Exemption in certain circumstances.... Prior to the effective date [these funds should:] [1] Review all fund documentation including side letters and ISDAs/derivative contracts....[2] Consider DOL notification requirements in light of the September 15, 2024 notification deadline ... [3] Does the fund have sufficient assets under management and capitalization to qualify under the QPAM Exemption in light of the Amendments' requirements? [4] Consider recordkeeping requirements.... [5] Has the fund or any affiliate committed prohibited misconduct under the expanded requirements?"   MORE >>

"While the direct impact on 401k plan sponsors may be negligible, the new Fiduciary Rule will affect the vendors hired by plan sponsors. It will be up to the plan sponsors to vet those vendors in light of the new Rule.... Plan sponsors will need to inspect how they document and verify anything that regulators might determine to be a self-dealing transaction.... The new Rule will bring the process for [placing annuities in 401k plans] under more scrutiny.... [D]ocumentation and disclosure procedures will need updating.... The issue gets more complex for rollovers."   MORE >>

"This would appear to be yet another case where the folks bringing suit failed (at least in the opinion of the judges hearing their case) to persuade based on the facts presented that there had been an injury, and that they, therefore, had standing to sue. " [ Wilcox v. Georgetown Univ. , No. 23-7059 (D.C. Cir. Apr. 23, 2024)]   MORE >>

"The publicly traded U.S. companies with the 100 largest defined benefit plans can now boast an average funding ratio of 99.9% as of Dec. 31 ... That's a slight drop from the average ratio of 100.2% in the [same] analysis a year earlier, but it still represents a level of stability for funding among corporate pension plans not seen in years. While not all the 100 measured plans are fully funded, 49 had funding ratios of 100% or more as of Dec. 31, and 30 plans even have funding ratios of 110% or more."   MORE >>

"The [DOL], the Office of the Comptroller of the Currency (OCC), and the [SEC] oversee TDFs through disclosure requirements, enforcement, and examinations. But DOL's guidance has not been updated and lacks detail. For example, DOL developed guidance in 2010 for participants and in 2013 for plan sponsors to help them select TDFs. However, the guidance does not include recent developments such as the increase of TDFs structured as collective investment trusts." [GAO-24-105364 pub. Mar 28, 2024; rel. Apr 29, 2024]   MORE >>

"Although it remains to be seen what form the DOL regulation will take, and whether it will create new risks for ESOP transactions, most practitioners in the field are anticipating this guidance will resolve basic issues about valuation process and methodology, clearing the way for more ESOP transactions."   MORE >>

"Callan's recently released 2024 Defined Contribution (DC) Trends Survey ... found top areas of focus for DC plan sponsors include plan governance and process, investment management fees, and administration fees. Fiduciary initiatives in 2023 centered on reviewing plan fees, the investment policy statement, and the investment structure -- things the survey found will also be top areas of focus in 2024, with reviewing plan fees as the highest priority (74%)."   MORE >>

"Under this court's ruling, ERISA is not a law of process as designed, but a liability trap that allows the trial bar to challenge any process-based decision they think can be leveraged into settlements and legal fees. This case ... should inform plan sponsors that they face increased liability if they retain investments placed on a watchlist for even a single quarter. Plan sponsors are also at a higher risk of liability if they retain investments that are challenged in other excess fee cases, even if those lawsuits are meritless." [ Sellers v. Trustees of Boston College , No. 22-10912 (D. Mass Apr. 11, 2024)]   MORE >>

"For several decades, people worried about future retirees have argued their case based on broad trends, such as the waning of defined-benefit plans, surveys suggesting that workers don't own enough investment assets, and the ever-increasing length of retirement as Americans live longer. Those are all worthwhile topics, but they represent questions to be addressed, not answers to be delivered. To put the matter another way, unless they are accompanied by specific supporting evidence, demographic arguments are insufficient."   MORE >>

"Employers who rely on noncompete agreements to protect their legitimate business interests will no doubt face questions from employees concerning the continued enforceability of those restrictions following the FTC's promulgated rule  ... [This article provides] Q&A talking points for employers to address employee questions.... [E]mployers should evaluate alternative protective measures and utilize a 'belt and suspenders' approach to the protection of their interests."   MORE >>

"Employers should start identifying the workers who may need to receive notice if the Rule goes into effect and consider the logistics of making notice.... [E]xisting non-competes with senior executives will remain enforceable after the Rule goes into effect.... Employers should ... evaluate less restrictive measures that they either now have available or may need to implement should the Rule go into effect.... [E]ven if the Rule is delayed or struck down by the United States Supreme Court, state legislatures or Congress may be prompted to adopt restrictions on non-competes."   MORE >>

"The analysis for how best to treat performance-vesting awards in connection with a corporate transaction can be multifaceted and will vary deal by deal depending on the facts and circumstances.... ... Should unvested awards be accelerated at closing?  ... Can the existing performance goals be modified or adjusted to continue to apply postclosing? ... How is the performance level measured?"   MORE >>