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There will be a significant number of retirees from the company our company in the next year. The company has a significant amount of Cash on the balance sheet that might not all be included in the valuation. The Company and trustee are unwilling to let anyone else review the valuation report. Is there anyway to dispute the valuation on the basis it is too low? The ESOP owns over 70% of the company, but the CEO and CFO seem to be hiding the cash until after the current round of retirements.

I’m hoping BenefitsLink people will help me crowdsource some background for a research project. The research project assumes that, whether on May 7 or by some later date, a court issues a mandate to vacate the 2016 investment-advice fiduciary rule. The first of the questions is: which plan-sponsor fiduciaries are affected by that result? If one follows the rulemaking’s 2015-2016 reasoning, it is small plans that more need to be protected from communications by those who, but for applying the to-be-vacated 2016 rule, might not be held to fiduciary standards of loyalty and care. But how small is small? In recent years, I’ve seen plans smaller than the Labor department’s $50 million dividing line use registered investment advisers who sign contracts expressly accepting status and responsibility as an ERISA fiduciary. In your experience, what size sorts plans between those unlikely to use a fiduciary adviser and those likely to use a fiduciary adviser?

It has been my understanding that the new fiduciary rule issued by the DOL applies only to ERISA plans and IRAs (if and when it actually goes into effect). As such, governmental plans and church plans would generally be exempt. However, I recently came across the assertion (here) that money rolled over from an ERISA plan into a governmental plan would continue to be subject to the new fiduciary rules. Has anyone else seen this interpretation of the new rules? I can't find anything else to support the author's position. (By the way, I do understand that advice regarding whether to roll funds between a governmental plan and an ERISA plan or IRA would be advice subject to these rules. The article raises a separate issue by suggesting that the rolled funds would be subject to the new rules while in the hands of the governmental plan.)

Plan is a self-insured plan that contracts with a Non-traditional Third Party Administrator. The TPA does not collect any premiums or pay out any claims (claims are handled by Care First). Carefirst adjudicates all claims, and debits an account belonging to Plan Sponsor. Role of the TPA is to process enrollment, provide other administrative services(billing, prepare 5500s, PPACA reporting, consulting, etc), for which it receives a "fee for service." Additionally, TPA collects and remits to CareFirst the fees paid by Plan Sponsor. Since TPA does not "handle" plan assets and does not exercise any discretion or control over the Plan, it is our belief that the TPA does not fall under the ERISA definition of Fiduciary. Would you agree? If TPA is arguably not a fiduciary, would an argument exist that the TPA is not required to fulfill the ERISA bonding requirements under Section 412? A review of Field Assistance Bulletin No. 2008-04 leads me to conclude that since TPA does not "handle funds or other property" of the plan (merely collects ans remits a fee to Carefirst) and does not adjudicate Claims, it would not be deemed a "Plan Official." Thoughts? Thank you...

A 401k participant, who happens to also be a fiduciary, requested an in-service distribution after he turned 59 1/2. The plan administrator allowed the distribution, which the participant then rolled over to an IRA. The terms of the plan only allow in-service distributions upon turning 62 years of age. Transaction occurred in 2014 and discovered in 2015. Amount was approximately $500,000, which represents about 25% of plan assets. The operational failure seems easy enough to correct, but is this not also a prohibited transaction? Any suggestions for addressing the prohibited transaction? Apply for individual exemption? Would a retroactive plan amendment allowing the distribution be feasible? If the distribution was allowed under the terms of the plan, a statutory exemption appears to apply.

Is this a breach of fiduciary duty under ERISA? Company sponsors a group term life plan. Company provides a basic life benefit at no cost to employees. Employees may purchase supplemental life. Basic and Voluntary life are with the same insurer. The basic life loss ratio runs pretty consistently around 150-200% per year. Voluntary life loss ratio runs a pretty consistent loss ratio of about 30%. It is clear that the voluntary life is subsidizing basic life, is this a breach of fiduciary duty? Thanks

I am interested in learning more about the several QDRO-outsourcing services available in the retirement-services markets, and hope to get information from BenefitsLink mavens’ wide experience. Of the big recordkeepers, which ones offer a service of deciding whether an order is a qualified domestic relations order? For those that offer a service, does the service provider accept responsibility as a fiduciary to the extent of its QDRO-or-not decisions? Or does the QDRO service provider get the plan’s named fiduciary to instruct the service provider to follow a written procedure it designed so that the service provider is not a fiduciary? I have seen QDRO service procedures that authorize the service provider to approve as a QDRO only an order that is identical (but for the names and addresses, and filling-in the amount or percentage to set over to the alternate payee) to a specified form of order. All else the service provider turns back to the plan’s administrator. How common is this way of doing a QDRO service? If a QDRO service procedure is not so limited as described in the preceding paragraph, what techniques does the procedure use to get rid of discretion? Do other recordkeepers or third-party administrators offer a service of deciding whether an order is a qualified order? Again, does one design it to be fiduciary or non-fiduciary? Are there are any “stand-alone” QDRO service providers that are not a part of or affiliated with a recordkeeper or third-party administrator? What methods do they use? If your customer says it wants to outsource QDRO decisions, what service provider do you suggest to your customer?

Many people guess that a retirement plan’s administrator (not a recordkeeper or TPA) has an ERISA fiduciary duty to maintain the plan as a tax-qualified plan. Recently, a consultant told an employer that this idea is wrong. The consultant said that ERISA requires a plan’s administrator to administer a plan according to the plan’s written terms and ERISA. Further, the consultant said that if a plan becomes tax-disqualified in form because the employer failed to amend the plan, nothing in ERISA requires the administrator (in its role as the plan’s administrator) even to try to get the employer to amend the plan. In fairness, the consultant said that the administrator must use prudent care to not make (and not allow) any communication to describe anything about the plan’s or its transaction’s tax treatment in any way that is false or misleading. The consultant suggested revising the summary plan description to omit any explanation about tax treatment. The consultant suggested editing the § 402(f) notice (if any) so that every explanation is preceded by “If the Plan is a plan described in Internal Revenue Code § 401(a), ….” The consultant said that a plan’s administrator administers the plan that the employer created. Do you think that the consultant is right about the absence of an ERISA fiduciary duty? If not, why not? So that the reasoning is something more than a sense that something doesn’t seem fair or decent, what language in ERISA’s statutory text supports the fiduciary’s duty?