News Items

16 pages. "Nearly a third (32.4 percent) of [responding] employers ... reported offering or planning to offer some student loan debt program ... These 'Student Loan Debt Focused Employers' were more likely than the typical survey respondent (the full sample of all 250 that responded) to have taken steps to measure the financial wellness needs of employees, including examining existing employee benefit data ... surveying employees ... holding focus groups ... and analyzing other quantitative employee data ... Student Loan Debt Focused Employers cited complexity of the programs as their number one challenge in offering financial wellness benefits in the workplace -- nearly half gave this reason."

"The combination of lack of consensus on proper application of the new method, along with agreement that it is preferable and the change is irreversible, has on occasion led to some unfortunate results. Auditor requirements related to application of the spot-rate method may have adverse effects on an employer's pension cost, and if the change is irreversible then the employer is stuck with the bad effect."

"Replacement rates that compare benefits with earnings just before retirement show that, across cohorts, benefits replace about two-fifths of substantial late-career earnings, falling short of providing income continuity as workers transition out of the labor force.... Because the Social Security benefit formula is progressive, meaning that benefits replace a larger share of earnings for lower-income workers, replacement rates for workers in the lowest earnings quintile are about two to three times higher, on average and across cohorts, than replacement rates for workers in the highest quintile."

25 presentation slides. Topics: [1] What is a 'Non-Federal Governmental Plan'? [2] Who regulates Non-Federal Governmental Plans? [3] Does the [ACA] apply to Non-Federal Governmental Plans? [4] How does CMS ensure Non-Federal Governmental Plans are compliant with the ACA? [5] Resources and compliance tools.

"[The authors] are still waiting for finalization of the Nevada rules on the fiduciary duty for broker-dealers and investment advisors and the effective date of the New York rules on the sale of annuities and life insurance. In the meantime, though, Maryland and Massachusetts have stepped in with new developments. The Maryland action is an about-face."

18 pages; Mar. 20, 2019. Topics include: [1] Premiums; [2] Standard Terminations;[3] Reportable Events; [4] ERISA Section 4010 Reporting; [5] ERISA Section 4044 Calculations; [6] Deadline for Reporting Section 4062(e) Event; and [7] Determining Whether Section 430(k) Lien is Discontinued at End of Plan Year.

33 Q&As, Apr. 11, 2019. "[Included] are answers to some basic questions about the new qualified business income (QBI) deduction, also known as the section 199A deduction, that may be available to individuals, including many owners of sole proprietorships, partnerships and S corporations. Some trusts and estates may also be able to take the deduction. This deduction, created by the 2017 Tax Cuts and Jobs Act, allows non-corporate taxpayers to deduct up to 20 percent of their QBI, plus 20% of qualified real estate investment trust (REIT) dividends and qualified publicly traded partnership (PTP) income."

36 presentation slides. "Most employers with a worksite clinic have over 1,000 eligible employees at their largest clinic location, two-thirds rely on external parties to run the clinic, and 59% have 3-10+ healthcare providers ... Half of employers prioritize a core set of services across all of their clinics; Clinic service variation is due to specific location needs and/or use of community health clinic provider ... 95% of employers are satisfied with their clinic outcomes, with 39% being very satisfied."

29 pages; ABA EBC 2019 Midwinter Meeting Report. Outline of recent litigation involving multiemployer plans.

12 pages; ABA EBC 2019 Midwinter Meeting Report. Outline of statutory and regulatory developments for ESOPs, 401(k) plans, IRAs, and Section 457 plans.

"There is a simple reason why pensions are in such rough shape: The amount owed to retirees is accelerating faster than assets on hand to pay those future obligations. Liabilities of major U.S. public pensions are up 64% since 2007 while assets are up 30% ... Here is how it got that way[.]"

7-page presentation outline, from ABA EBC 2019 Midwinter Meeting."An initial issue ... is whether employee benefit plans are an independent legal person, different than the plan sponsor. On this issue, the law is not only obtuse, but the federal circuits have conflicting lines of authority.... For pension plans, is the plan sponsor or the plan administrator, if different entities, the proper party to act for the plan? ... For fully insured welfare benefit plans, is the insurer also the plan and thus the proper party? For engagement letters, this issue can often be finessed by an arrangement that does not resolve it but makes it not relevant."

16 presentation slides, from ABA EBC 2019 Midwinter Meeting. Topics: [1] Pre-suit settlement negotiations; [2] Media coverage; [3] External review; and [4] Request for review strategies.

34 presentation slides, from ABA EBC 2019 Midwinter Meeting. Topics: [1] 401(k) and 403(b) fee litigation; and [2] Fiduciary risk on alternative investments.

"[This article provides] an overview of Section 4960, summary of the positions taken in [Notice 2019-09], and discussion of whether such positions resolve patent ambiguities or represent interpretations that are aggressive (in our view) or likely to prove administratively daunting, troublesome, or costly to ATEOs, their boards, and management."

44 presentation slides. "Employees generally take for granted the fact that they can contribute to health and welfare benefits on a pre-tax basis through payroll. This is actually the product of a tangled web of cafeteria plan rules that permit employees to avoid constructive receipt -- a concept most have never considered. The election rules in Section 125 are very strict, and there is no corrections program to prevent a full loss of tax-advantaged status for failure to follow. This makes understanding and complying with the Section 125 rules more important than most appreciate[.]"

"The rules under IRC Section 409(p) are designed to prevent a group of 'disqualified persons' (DPs) from collectively owning 50% or more of an S corporation's stock ... Since there are no prescribed correction methods to address Section 409(p) violations, prevention methods are important considerations for both ESOP plan design and operation.... This 'Issue Snapshot' explores methods for preventing a Section 409(p) violation including those that were the subject of [Chief Counsel Advice (CCA) memorandum 201747007]."

32 presentation slides, from ABA EBC 2019 Midwinter Meeting. Topics: [1] Fiduciary burden of proof and loss causation; [2] Fiduciary disclosure claims; [3] Fiduciary status and prescription drug litigation; [4] ESOP litigation; [5] Church plan litigation.

32 presentation slides, from ABA EBC 2019 Midwinter Meeting. Topics: [1] Educating fiduciaries: Behind the alternative investment label; Common structures for alternative investments; Plan asset vs. non plan asset vehicles -- basic ERISA rules; Understanding risk and benchmarking; Educating clients sufficiently to invest in alternatives. [2] Outsourced Investment Decision-Maker (OCIO): What it is; Why consider it; Challenges, including selection and monitoring; Contracting.

5-page outline, from ABA EBC 2019 Midwinter Meeting. Topics: [1] Attorney-client privilege: internal investigations, fiduciary exception; [2] Accountant-client privilege; [3] Governmental privileges: Deliberative process privilege, informant privilege, Presidential communications privilege, FOIA exemptions involving privilege.

"[The SEC's] Office of Investor Education and Advocacy (OIEA) ... developed an investor preparedness checklist ... [which] reminds investors to: identify goals and create a financial plan; pay off high-interest debt; participate in company retirement plans and take full advantage of employer matching; do a background check on any investment professional; understand risk tolerance; understand fees; research investments; maintain a diverse portfolio; and avoid investment opportunities that sound too good to be true."

50 presentation slides, from ABA EBC 2019 Midwinter Meeting. Topics: [1] Legal privileges; [2] Engagement letters; [3] Sexual harassment, Gender Bias; [4] Social media; [5] Advertising.

37 presentation slides, from ABA EBC 2019 Midwinter Meeting. Topics: [1] Financial assistance to insolvent multiemployer plans; [2] Projections report; [3] Final rule -- mergers and transfers; [4] Safe-harbor solvency tests; [5] Changes; [6] Dueling court decisions on Segal Blend and withdrawal liability ; [7] Successor withdrawal liability; [8] Joint Select Committee on Solvency of Multiemployer Plans; [9] Pending legislative proposals.

38 presentation slides, from ABA EBC 2019 Midwinter Meeting. Topics include: [1] Practice tips. [2] What does a Balance Sheet/ statement of Net Assets look like? [3] What does the Income Statement/Statement of Changes in Net Assets Available for Benefits look like? [4] What does a DB plan's Actuarial Information look like? [5] What does a health plan's Benefit Obligations look like? [6] Uses of financial statements in ERISA practice and litigation. [7] Statutory basis for audit requirement. [8] Questions DOL identified that a fiduciary should ask the plan auditor. [9] Investment valuation: what's required. [10] Investment valuation: issues for fiduciaries. [11] Investment valuation: what should trustees/investment committees do periodically?

47 presentation slides, from ABA EBC 2019 Midwinter Meeting. "Key issue is how to distinguish the cost of arriving at a settlor decision (not payable from plan assets) from the cost of implementing it (plan may pay). In general, activities leading up to establishment of a plan, adoption of a discretionary amendment or initiation of a plan termination are 'settlor' in nature. Activities after that are 'fiduciary' to the extent that they relate to plan administration or to compliance with ERISA, IRC or other legal requirements applicable to the plan."