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Ascensus, Newport Nonqualified Platforms Hit by Infosys Cybersecurity Issue

"Ascensus and its subsidiary, Newport Group Inc., have had their nonqualified retirement plan services affected by a cyberattack on business processes firm Infosys McCamish Systems LLC. The platform that Ascensus and Newport use has not been able to update nonqualified user accounts since November 2."

Why Are Fees Our Only Focus?

"[T]here are other important factors besides fees alone that influence the account balances that workers will take with them into retirement. Some are partly or entirely within the control of the worker ... Tunnel-visioned preoccupation with minimizing fees, rather than promoting more aggressive saving and improving investing behavior or reducing 'leakage', can lead to retirement accounts that under-perform in the long run."

Will Fiduciary Rule Survive Rising Tide of Lawsuits?

"The plaintiffs' arguments for an injunction [include] ... DOL infringing on the authority of other federal and state agencies, doing financial harm to investors, ... exposing financial advisors and their employers to litigation risk, and issuing a final rule with new conditions that allowed no opportunity for public review and comment. This last ... is thought to have a greater chance of swaying a court in favor of the plaintiffs.... Another charge that might have some possibility of 'sticking' is that DOL, despite their claims to the contrary, does not appear to have coordinated in a serious way with the [SEC]."

Let's Hope the Fiduciary Regulation Is Worth It

"One expense we can find no evidence of being taken into account by DOL is the effort being expended by organizations that consult with, and counsel, financial organizations and advisors who must comply with the new rules. Benefits consulting firms, including law firms whose practice specializes in retirement benefits, are included in this group.... [W]hen all is said and done, the cost of adapting to these regulations will be far greater than four pages of the April 8, 2016, Federal Register suggest. We truly hope the benefits delivered to retirement investors will prove to be worth it."

Final Fiduciary Regs Pack Less Than Hurricane-Force Punch

"[T]he final rule and accompanying [PTEs] ... appear to be less disruptive and destructive than many thought they would be, compared to the 2015 proposed rule and exemptions.... In those cases where a signed BIC document must be executed, such as in an IRA rollover situation, contract execution can be part of an account opening process, rather than before the very first syllable of an advising communication! ... Also, the need for initial one, five and 10-year projections, and annual disclosures, were removed as BIC requirements, significantly reducing the administrative and record-retention burden of the BIC as initially proposed.... Health Savings Accounts (HSAs) and Coverdell Education Savings Accounts (ESAs) are covered by this guidance to the same extent that IRAs are."

Senate Committee Report Indicates Ends Seem to Justify Means for Partisan DOL

"One of the key concerns of lawmakers and the retirement industry was whether the DOL had effectively communicated with the [SEC] as the conflicted advice regulations were being drafted.... The DOL not only refused to provide copies of what might have been its key communications with the SEC, but evidence obtained by the Committee from the SEC paints a picture of the DOL attempting to influence SEC not to fully cooperate with the DOL; not to provide these requested communication records. SEC staff had also pointed out numerous flaws in the regulations. The upshot is that the DOL's claim to have actively and substantively worked hand-in-hand with the SEC in creating these regulations turns out to be a fiction."

DOL Stretches Credibility and Precedent in New State Plans Guidance

"DOL takes the position that a state government could set up what would be called an 'open MEP,' a multiple employer plan for employers that have no common interest, purpose, or ownership. This is something that DOL has expressly and aggressively forbidden in such recent guidance as Advisory Opinion 2012-04A.... There are also legitimate questions to be asked about the alternative DOL-approved options for state-coordinated ERISA plans.... [Do] we want state governments deciding which service providers they will favor by including then in a state-approved retirement plan 'marketplace?' Do we want a state to sponsor a prototype plan document and offer it directly to employers, essentially competing with private sector firms that offer prototype documents and the services that go with them?"

Whose Responsibility is Socially Responsible Investing?

"Two things, at least, are troublesome here. One is EBSA's inconsistency over time in the emphasis it places on fiduciary caution, and the embrace of investment considerations that have little if anything to do with generating returns for participants and beneficiaries. Second is the unmentioned, but no less real, matter of just what is 'socially responsible.' One need look no farther than America's democratic political system to know that there is no fool-proof consensus on what is moral, ethical, or socially responsible."

Is It Personnel Shortage, Intrusiveness, or Both, That's Behind New Form 5500-SUP?

"Some feel that a plan that provides data on its methodology for conducting coverage and nondiscrimination testing, its amending history, opinion or advisory letter information, etc., is making itself an all too convenient target for an IRS audit.... There are questions on Form 5500-SUP the answers to which will come from other providers, which the preparer may be in no position to authenticate or verify. Is the preparer potentially on the hook for the work of others over whom it truly had no control? Mandating that the preparer of the Form 5500-SUP be identified will result in a public record disclosure of the client/preparer relationship; something not required of preparers of Form 5500 itself. Is this really necessary?"

EBSA's Fiduciary Solution: Many Ifs, Ands and Buts

"EBSA's proposed regulations make clear that compensation that may vary depending on the investments chosen ... can continue to be a part of the adviser or advising firm's compensation structure. But -- and it's an important 'but' -- the price for this freedom in compensation arrangements is the Best Interest Contract, or BIC ... 'Best interest' may be in the eye of the beholder. How much emphasis should be given to the lowest possible fees? Are higher fees justified by facts and circumstances, such as a more expensive fund whose manager has a track record for outperforming others? Would advice that looks questionable today be considered acceptable in the historical context of the time and options available when it was given?"

'March Madness' an Apt Name for Fiduciary Regs Battle

"It is significant that these anticipated regulations are now widely being referred to as the 'conflicted advice' regulations, a name that unquestionably is more charged than 'fiduciary definition' regulations. 'Politically charged' would not be putting it too strongly."

Does Retirement Saving Cost, or Pay?

"The annual 'tax cost' estimated by CRS for home mortgage interest deductions is four times the estimated cost in lost revenue as a result of IRA deductions and contributions to employers' retirement plans. Furthermore, citizens who reduce their taxable income via the home mortgage interest deduction do not pay this tax benefit back to the U.S. Treasury at some future time. Contrast this with deductible IRA contributions and pre-tax amounts deferred into 401(k) plans which are eventually taxed when a retiree withdraws them for financial support in retirement. Contrary to the way these retirement benefits are often characterized, they are not a permanent 'cost' to the federal tax revenue stream."

Let's Help Participants Invest With Knowledge, Not Ignorance

"[F]ar too many plan participants -- when faced with a market reversal -- behave like poorly trained soldiers confronting their first battle. Rather than hunkering down and preparing to weather the siege of a market decline, they panic, cast off their good judgment and head for the imagined security of a non-volatile investment. Some may never again move back into the types of investments that have the potential to generate real long-term growth."

Some Roth Is Good; 'More' May Not Be

"[T]he conversion of pre-tax IRA or employer plan amounts to Roth status actually generates new tax revenue in the year the transaction occurs.... The Roth concept also figures heavily in proposals for future tax reforms.... The upside for taxpayers, and there certainly is one, is potential tax-free earnings in the future ... The downside for the federal budget is a significant reduction in future tax revenues."

What Are EBSA's Plans for Regulating Brokerage Windows?

"Despite backing down in FAB 2012-02R, EBSA left the door ajar for possible future action.... The DOL's Semiannual Regulatory Agenda released in May of this year listed 'Standards for Brokerage Windows -- PreRule' as a priority. This agenda item was fulfilled with EBSA's August RFI. A reading of the 39 questions and their subparts does not give comfort to those who fear that EBSA is committed to restricting the use of brokerage windows, one way or another."

Let's Enable ERISA Plans to Use More Electronic Delivery

"EBSA's preference -- reflected in its regulations governing electronic delivery of retirement plan communications of many kinds -- requires that plan participants and beneficiaries affirmatively declare their willingness to receive notices, election requests, summaries and other information, electronically. Many ... believe EBSA should be more flexible and more in line with the rest of financial industry in this area. Given the inclination of many people to put off decision making, or to fail to take action simply out of inertia, it is likely that the lack of an election to receive communications electronically is not necessarily a rejection of that form of delivery."

IRS Verdict Is In, But Buyer Jury Is Out, on QLACs

"The question no one is able to answer at this point is how attractive this investment option will be to those with assets accumulated in IRAs or employer plans. It is a safe assumption that it will take time for interest to grow. Longevity annuities are not actually a new product, but until now they did not offer the tax benefits provided by these final regulations."

Happy 40th Anniversary, ERISA!

"Very few who are working in the retirement industry today were 'in the business' in 1974, the year of ERISA's enactment. But an objective look at the state of retirement plans before that time leads to the inescapable conclusion that things have changed for the better. There may be shortcomings in the implementation and operation of plans under the ERISA umbrella. But these shortcomings generally have little to do with the intent of its provisions."

Dudenhoeffer Dust Will Take Time to Settle

"Some have seen the Supreme Court's ruling as a blow to fiduciaries of plans offering employer securities, expecting a rash of new stock drop lawsuits.... Although the selection of prudent investments is clearly the province of a plan's fiduciaries, we would caution plan sponsors not to react in knee-jerk fashion and blindly remove what might be a prudent option from its investment lineup. A close look at the Court's ruling may conclude that it actually raised the bar and made it more difficult for stock drop cases to be brought successfully."

Be Cautious of Offers to Pass the Fiduciary Buck

"The most aggressive of these fiduciary service marketers propose to transfer all employer fiduciary risk to themselves by the delegation of certain functions that may include plan administration, investment management or a combination thereof.... The employer is ultimately responsible for the providers they appoint to fulfill these roles and has an ongoing obligation to monitor the actions of each provider. While use of experts to fulfill these roles is often a prudent course of action for the plan fiduciary, they must always remember that their fiduciary obligation doesn't end with this appointment."