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Fourth Circuit Holds That Merrill Lynch's WealthChoice Award Program Is Not an ERISA-Covered Employee Pension Benefit Plan

"[T]he Fourth Circuit affirmed a district court's order granting summary judgment to Merrill Lynch, holding that the company's WealthChoice Award program -- a contingent cash incentive requiring eight years of continuous employment to vest -- is an excepted bonus payment plan under 29 C.F.R. § 2510.3-2(c) and does not qualify as an ERISA-covered employee pension benefit plan." [Milligan v. Merrill Lynch, No. 25-1385 (4th Cir. Apr. 17, 2026)]  MORE >>

Fourth Circuit Opinion: Merrill Lynch Deferred Pay Program Is Not Subject to ERISA (PDF)

"Having surveyed the case law of our peer circuits, we find the following nonexhaustive list of factors useful to consider when determining whether a plan is a bonus payment plan: [1] whether the plan contemplates universal employee participation or imposes heightened eligibility requirements, [2] whether the plan is funded with money that would otherwise be immediately payable to the employee, [3] whether the plan is actually funded or involves phantom investments, [4] whether employees can unilaterally postpone payments until termination or beyond, [5] whether the plan is presented as a vehicle for obtaining retirement income, and [6] whether firm performance impacts plan payments.... We are convinced that the WealthChoice Award program comfortably qualifies as a bonus payment plan.... [We] affirm the district court's order granting summary judgment to Merrill Lynch because the WealthChoice Awards program does not fall within the protections of ERISA." [Milligan v. Merrill Lynch, No. 25-1385 (4th Cir. Apr. 17, 2026)]  MORE >>

Merrill Lynch Beats Lawsuit Over Clifford Chance 401(k)

"According to the judge, the litigator's ERISA-based claims against Merrill Lynch -- which included allegations of excessive fees and impermissible kickbacks -- could succeed only if Merrill Lynch qualified as an ERISA fiduciary. The litigator argued that Merrill Lynch became an ERISA fiduciary through its actions in selecting a roster of investment funds for the Clifford Chance 401(k) plan. The judge disagreed, explaining that courts have consistently declined to impose fiduciary status on service providers that create a menu of investment options for plan trustees." [Walker v. Merrill Lynch, No. 15-cv-01959 (S.D.N.Y. Mar. 25, 2016)]

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2006 Merrill Lynch New Retirement Study -- A Perspective from Individuals and Employers

Excerpt: To gain insight into the shifting notions of retirement and what they mean, Merrill Lynch undertook a landmark study of baby boomers and retirement in 2005. Expanding on that study, the 2006 Merrill Lynch New Retirement Study, A Perspective from Individuals and Employers, has gone beyond boomers to probe deeper into the attitudes and perspectives of people in the broader adult population age 25-70.

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Merrill Lynch to Pay N.J. $45 Million Over Pension Fund Losses

"In 2009, then-Attorney General Anne Milgram sued Merrill on the grounds that it misled New Jersey's Division of Investment Management when it sold the state $300 million of its own preferred stock in January 2008. According to the state's initial complaint, Merrill gave the state inaccurate financial reports and understated its risks at the time of the sale.... Merrill Lynch settled without admitting or denying liability."  MORE >>

Advisor Sues Merrill Lynch Over Alleged ERISA Violations

"The compensation at issue relates to Merrill Lynch's WealthChoice Contingent Award Plan, which holds a portion of each advisor's commissions for eight years, called the 'vesting period.'... Milligan contends that WealthChoice is an employee benefit pension plan, per ERISA, and not a bonus incentive plan that can be forfeited subject to managers' discretion. The firm disagrees.... The charges are similar to others filed by advisors who moved firms, and may be part of a growing trend." [Milligan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 24-0440 (W.D. N.C. complaint filed Apr. 30, 2024)]

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Merrill Lynch Returns to Commissions

"Merrill Lynch will again accept commission-based individual retirement accounts ... Only fee-based annuities will be allowed ... [A]ccording to Merrill Lynch [a]nnuities are complex, and a fee-based advisory platform is the best way to serve advisors who have clients with annuities in their IRAs."  MORE >>

Merrill Lynch to Resume Charging Commissions on Retirement Accounts

"Merrill Lynch originally said it would stop charging commissions in retirement accounts and in 2016 launched a media campaign advertising its new policy and commitment to clients' best interests. The move to reintroduce commission-based brokerage accounts for retirement money is the result of the [DOL] fiduciary rule being killed ... along with the [SEC] proposing its own rule covering all accounts, not just retirement money"

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Merrill Lynch Took the Lead on the DOL Rule, Now It's Wrapping Its Flip-Flop in the Same Pious Intent

"When it looked like the DOL fiduciary rule was a foregone conclusion two years ago, Merrill Lynch jumped ahead of pack and announced the end of commission-based IRAs with a major advertising campaign exalting its holier-than-thou embrace of the controversial regulation.... When the rule finally died in the federal 5th Circuit Court of Appeals earlier this month, Merrill's reaction was swift.... [It] announced it would be re-examining its position over the next 60 days -- in the name of providing more 'choice.' "  MORE >>

How Merrill Lynch Breached the RIA Fiduciary Citadel

"In decades of competing against wirehouse brokers owners, registered investment advisors have always found comfort in one thought: Morgan Stanley, UBS, Merrill Lynch and Wells Fargo may blur meanings and provide pseudo-advice offerings but they'll never really try to out-RIA RIAs by going to greater lengths to remove conflicts and put client interests first.... Now it is becoming apparent that RIAs in the 401(k) field may need to defend against the Bank of America wealth manager as it mobilizes an ever-growing army of DOL-rule-compliant advisors as a zealously converted fiduciary player."  MORE >>

Merrill Lynch to Pay $25M in Lawsuit Over Fees in Small 401(k)s

"Merrill Lynch, Pierce, Fenner & Smith Inc. will pay $25 million to settle a lawsuit that accused the broker-dealer firm of profiting from excessive fees charged to small 401(k) plans... The deal features a 'corrective remediation payment' totaling at least $8.8 million and a 'disgorgement payment' of $16.2 million, the motion said. Class counsel will request attorneys' fees equal to 35 percent of the settlement payment, or $8.75 million, the motion said."

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

"While Merrill Lynch is offering advisers servicing 401(k) plans a fairly high level of discretion, Morgan Stanley is substituting some adviser discretion for more risk at the firm level ... The firms, each with adviser forces of greater than 14,000, are the first among their wirehouse peers to outline changes to how their representatives can conduct fiduciary 401(k) business as the [DOL's] fiduciary rule looms."  MORE >>

Merrill Lynch to End Commission-Based Options for Retirement Savers

"Merrill Lynch will no longer give retirement savers the option of paying a commission for trades, a wholesale exit from the traditional Wall Street sales model in accounts that stand to be affected by new conflict-of-interest rules on retirement accounts.... [W]hen the new rules take effect, investors who want a retirement account at Merrill will need to pay a fee based on a percentage of their assets, instead of having the option of being charged for each transaction made in their account."

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Merrill Lynch Jumps on Fiduciary Bandwagon But Critics See Lingering Conflicts

"Merrill Lynch recently announced that it will permit an elite group of its specialized consulting advisors the opportunity to become designated to provide fiduciary services to clients.... [Some] industry leaders question whether the firm can shed conflicted advice in favor of a strict fiduciary standard.... [O]thers see this as a huge game changer in the 401(k) arena and that RIAs in jeopardy of losing business will now need to step up their game in order to keep retirement accounts."

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Bank of America Merrill Lynch: Workplace Benefits Report

The Report, which examines the ways in which employers are helping to address the financial needs of a diverse workforce, includes responses from 650 senior executives and human resources and benefit plan leaders.

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Court Dismisses ERISA Suit over Merrill Lynch's WealthBuilder Plan

Excerpt: Merrill Lynch's WealthBuilder Plan did not violate [ERISA] because it was a top-hat plan, a federal judge ruled in throwing out a proposed class-action lawsuit by three financial advisers against the company. In deciding the Merrill Lynch plan did not run afoul of ERISA's minimum vesting requirements, [the court] asserted that it fit the guidelines for such plans because it was unfunded and intended for a select group of highly compensated employees.

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Merrill Lynch Advisor Finds Employer Interest in Retirement Plan Education Growing

Excerpt: Bill Moran, a financial advisor in the D.C. office of Merrill Lynch Wealth Management, spoke to Capital Business about ways employers can help quell financial fears.

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Bank of America Merrill Lynch Finds Retirement Participants Boosting Savings

Excerpt: 401(k) participants took positive savings actions within their retirement savings plans in Q4 and throughout 2009, according to the latest quarterly '401(k) Contribution Activities Scorecard' report from Bank of America Merrill Lynch.

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The Merrill Lynch New Retirement Study -- Perspectives from Individuals and Employers (PDF)

22 paages. Excerpt: The study sheds a revealing light on this changing model of retirement and the potential for a growing gap between employers and employees. It's the first of its kind – offering a comprehensive look into the retirement landscape from both sides of the coin.

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Pension Fund Claims Against Merrill Lynch Rejected by Court

Excerpt: A U.S. judge yesterday dismissed claims against Merrill Lynch & Co. by WorldCom Inc. employees who say the firm oversaw their pension funds and bought stock in the failing long-distance company, causing hundreds of millions of dollars in losses. The WorldCom workers sought $100 million from Merrill, the largest securities firm by capital, accusing it of violating its duties as trustee for their pension funds by investing 401(k) money in company stock, lawyers said.

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