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<< Older News  |  September 28, 2020

News

All News > Fiduciary Duties

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Employer May Be Held Liable for Service Provider's Error
The Wagner Law Group Link to more items from this source
Sept. 25, 2020

"The Second Circuit Court of Appeals ... has held that a plaintiff properly pled her breach of fiduciary duty claim for equitable relief against an employer in connection with a third party administrator's clerical error in calculating life insurance benefits payable to her under the employer's ERISA welfare plan." [Sullivan-Mestecky v. Verizon Communications Inc., No. 18-1591 (2d Cir. Jun. 1, 2020)]

Tags: Fiduciary Duties  •  Health Plan Administration

Duke Energy Faces Excessive Fee Lawsuit
PLANSPONSOR; free registration may be required Link to more items from this source
Sept. 25, 2020

"The complaint suggests the plan's recordkeeping expenses demonstrate that defendants failed to engage in prudent monitoring and engage in prudent practices to keep those costs at competitive levels." [Johnson v. Duke Energy Corp., No. 20-528 (W.D.N.C. complaint filed Sep. 23, 2020)]

Tags: Fiduciary Duties  •  Retirement Plan Investments

Avoiding ERISA Excessive Fee Lawsuits Isn't Hard
NWPS Link to more items from this source
Sept. 25, 2020

"[M]any of these lawsuits can be explained by the fact that the case law is maturing (providing a blue print for action) and that participants are more knowledgeable and attuned to fees ... [T]here are more tools and better data to reveal plan fees. But often, the reason for these lawsuits is simple neglect.... [A] few simple actions can improve fiduciary processes and reduce litigation risk[.]"

Tags: Fiduciary Duties  •  Retirement Plan Administration

DOL Lacks a Convincing Legal Basis for Attempts to Discourage ESG/Sustainable Investing
Law Offices of Albert Feuer, via SSRN Link to more items from this source
[Opinion]
Sept. 25, 2020

"The [DOL] has proposed two sets of amendments to the ERISA fiduciary regulations that would discourage plans from making ESG/sustainable investment decisions (including selecting, keeping, or exercising ownership rights). These changes would affect not only ERISA plans, but would appear to have similar effects on all trusteed tax-exempt savings and retirement plans, such as those maintained for state and local employees. If adopted these proposals would dramatically reverse long-standing policies without any convincing legal basis. Moreover, these proposals may also discourage ESG/sustainable investing by state and local savings and retirement plans."

Tags: Fiduciary Duties  •  Retirement Plan Investments - ESG

Eighth Circuit Dismisses Two Stock Drop Cases Based on Nonpublic Information
Thomson Reuters / EBIA Link to more items from this source
Sept. 24, 2020

"In both cases, the Eighth Circuit concluded that the participants' proposed alternatives -- which required public disclosure of the nonpublic information -- did not meet the Dudenhoeffer standard for imprudence claims. They also rejected the disloyalty claims because they involved essentially the same actions and would, if allowed, 'circumvent' the Dudenhoeffer pleading standard." [Allen v. Wells Fargo & Co., No. 18-2781 (8th Cir. Jul. 27, 2020); Dormani v. Target Corp., No. 18-2543 (8th Cir. Jul. 28, 2020)]

Tags: Fiduciary Duties  •  Retirement Plan Investments

DOL's Proposed Rule Solidifies Shareholder Rights, Including Proxy Voting
Ascensus Link to more items from this source
[Guidance Overview]
Sept. 24, 2020

"The DOL issued this proposed rule in part to correct a 'persistent misunderstanding' that ERISA fiduciaries must vote on all proxies presented to them. There have also been substantial changes in how plan administrators invest their plan assets and in how the investment industry operates as a whole. The proposed rule is intended to align the Investment Duties regulation with these changes and with recent SEC guidance on the proxy voting process."

Tags: Fiduciary Duties  •  Retirement Plan Investments

Best Interest Standard of Care for Advisors, Part 32
FredReish.com Link to more items from this source
[Guidance Overview]
Sept. 24, 2020

"[T]he consideration of costs and other relevant factors should be done in a manner that is in the investor's best interest and without putting the interests of the broker-dealer (and the financial professional) ahead of the interests of the retail customer. In some cases, though, a greater emphasis on costs could be warranted. [Prior articles] gave examples of three scenarios where costs would likely be weighed heavily in making a recommendation. This article gives additional examples."

Tags: Fiduciary Duties  •  Retirement Plan Investments

Cornell Crafts Cash Settlement with Schlichter
National Tax-Deferred Savings Association [NTSA] Link to more items from this source
Sept. 24, 2020

"The suit -- one of the first of the genre filed four years ago -- was filed on behalf of some 28,000 current and former plan participants in Cornell's 403(b) plan, a plan that, as of December 2014 had $1.9 billion in assets. The one remaining claim -- and the one item that was addressed in the settlement -- was the issue of the plan's utilization of retail class mutual funds when less expensive, institutional class shares were available." (Cunningham v. Cornell Univ., No. 16-6525 [S.D.N.Y. motion for settlement approval filed Sep. 21, 2020)

Tags: 403(b) Plans and Annuities  •  Fiduciary Duties  •  Retirement Plan Investments

Investment Policy Statement Must Stop Short of Promises
401kTV Link to more items from this source
Sept. 24, 2020

"An Investment Policy statement can do more harm than good if it moves from policy to guaranteeing results. The policy can become more of a liability than a benefit if it steps over the line on trying to do too much. Should you even have an Investment Policy Statement (IPS) for your retirement plan? Yes. Should you throw everything in and include the proverbial kitchen sink? Absolutely not."

Tags: Fiduciary Duties  •  Retirement Plan Investments

DOL Creates Path for 401(k) Plans to Offer Private Equity Investment Options
McDermott Will & Emery, via Lexology; free registration required Link to more items from this source
[Guidance Overview]
Sept. 23, 2020

"The DOL's guidance is subject to several limitations that plan sponsors and firms should consider when evaluating and selecting investment options for 401(k) plans. [Information Letter 2020-06-03] does not allow 401(k) plan participants to directly invest in private equity funds on a stand-alone basis.... Plan sponsors must also provide participants with sufficient information to make informed investment decisions with regard to investment options available under the plan, which may be more difficult to do for private equity investments."

Tags: Fiduciary Duties  •  Retirement Plan Investments

Judge Rejects Petition to Throw Out AutoZone ERISA Lawsuit
Pensions & Investments Link to more items from this source
Sept. 23, 2020

"The participants ... [argued] that AutoZone fiduciaries violated ERISA by retaining GoalMaker, an asset allocation service ... which allegedly steered participants' investments into high-cost investment options.... The judge ruled that plaintiffs had provided enough information to allow the complaint to go to trial regarding the use of GoalMaker; the retention of a stable value fund; the use of actively managed mutual funds and separate accounts; the fiduciaries' methodology for selecting investment share classes; and the comparing of record keeping fees to benchmarks." [Miller v. AutoZone, Inc., No. 19-2779 (W.D. Tenn. Sep. 18, 2020)]

Tags: 401(k) Plans  •  Fiduciary Duties  •  Retirement Plan Investments

DOL Takes Much-Needed Steps Toward Ensuring Fiduciary Obligations
Institute for Pension Fund Integrity [IPFI] Link to more items from this source
[Opinion]
Sept. 22, 2020

"Prioritizing issues other than pure financial returns may be an acceptable strategy for individuals managing their own money or for corporate board rooms contemplating the future of their company, but for fiduciaries, prioritizing any kind of self-interest or ulterior motive over maximizing returns is a dereliction of duty.... While more work is needed, it appears that the [DOL] is finally in a position to implement much-needed reforms to a pension system that has for too long neglected the underlying financial security of its beneficiaries."

Tags: Fiduciary Duties  •  Retirement Plan Investments

'Sustainable' Investing Is a Self-Defeating Strategy
Burton G. Malkiel, via The Wall Street Journal; subscription may be required Link to more items from this source
[Opinion]
Sept. 22, 2020

"It's become fashionable for investors to try to do good at the same time as they do well. Investment in so-called ESG funds ... has doubled in 2020 and now totals around $35 billion.... Some investors argue that this kind of investing will achieve a 'more inclusive capitalism' and can even enhance investment returns. But how do you know if your investments will have the desired social impact?"

Tags: Fiduciary Duties  •  Retirement Plan Investments

Allianz, Aon Face Lawsuit from DB Plan Fiduciaries Over Investment Strategy
PLANSPONSOR; free registration may be required Link to more items from this source
Sept. 21, 2020

"[The] fiduciary of the master trust holding the assets of the employee [DB] plans that participate in the National Retirement Program of the Blue Cross and Blue Shield Association, has filed an [ERISA] lawsuit against Allianz Global Investors and Aon Investments USA. The trust claims that promised downside protection for several AllianzGI Structured Alpha funds was not implemented, resulting in 'staggering' losses to the trust during the market crash and volatility caused by the COVID-19 pandemic." [Blue Cross and Blue Shield Assoc. Nat. Emp. Benefits Comm. v. Allianz Global Investors U.S. LLC, No. 20-7606 (S.D.N.Y. complaint filed Sep. 16, 2020)]

Tags: Fiduciary Duties  •  Retirement Plan Investments

Post-Jander Meander: IBM Asks Supreme Court to Again Weigh In on Stock-Drop Case
Pensions & Investments Link to more items from this source
Sept. 21, 2020

"The IBM fiduciaries asked the Supreme Court ... to review the appeals court decision ... [and] resolve differing lower courts' interpretations of Supreme Court rulings on stock-drop cases. 'Three courts of appeals have now correctly rejected as legally insufficient generalized allegations that the harm from inevitable disclosure only increases over time and thus earlier disclosure is always prudent,' IBM fiduciaries wrote in their petition to the Supreme Court. The New York court 'has doubled down on its contrary view.' " [Jander v. Ret. Plans Comm. of IBM, No. 17-3518 (2d Cir. Jun. 22, 2020; cert. pet. filed Sep. 1, 2020)]

Tags: Fiduciary Duties  •  Retirement Plan Investments

DOL's Proposed New Proxy Voting Rule Could Be a Game Changer for ERISA Fiduciaries
Morgan Lewis Link to more items from this source
[Guidance Overview]
Sept. 18, 2020

"The proposed regulation ... takes the position that ERISA actually requires fiduciaries NOT to vote proxies unless the fiduciary prudently determines that the matter being voted upon would have an economic impact on the plan ... Given that institutional employee benefits plans tend to be well diversified, it may prove difficult to meet this threshold."

Tags: Fiduciary Duties  •  Retirement Plan Investments

ERISA Excessive Fee Self-Dealing Suit Targets Pentegra MEP
planadviser Link to more items from this source
Sept. 18, 2020

"Comparing Pentegra's plan to another large MEP, the complaint notes that the other plan uses an outside recordkeeper and paid an average of $80 per participant. 'Pentegra's 2018 average per participant fee of approximately $388 for similar 'contract administrator' services was 485% higher,' the complaint states." [Khan v. Bd. of Dir. of Pentegra Defined Contrib. Plan, No. 20-7561 (S.D.N.Y. complaint filed Sep. 15, 2020)]

Tags: Fiduciary Duties  •  Retirement Plan Investment Costs

Best Interest Standard of Care for Advisors, Part 31
FredReish.com Link to more items from this source
[Guidance Overview]
Sept. 17, 2020

"The SEC's approach requires that cost be considered as an important factor in the context of the retail customer's investment profile. The consideration of costs and other relevant factors indicated by that profile should be done in a manner that is in the investor's best interest. In some cases, though, a greater emphasis on costs would be warranted."

Tags: Fiduciary Duties  •  Retirement Plan Investments

Appellate Court Split in Recent Single Stock Fund Litigation
Mayer Brown Link to more items from this source
Sept. 16, 2020

"[A recent Fourth Circuit] case highlights the dilemma of retirement plan sponsors and fiduciaries, who, as a result of a corporate transaction, inherit a plan investment fund consisting of a single class of stock that does not constitute an employer security for purposes of ERISA.... While courts are still evaluating how to handle these single stock fund cases, a plan fiduciary's potential exposure for continuing to maintain such a fund seems to turn, at least in part, on the manner in which ERISA's duties of prudence and diversification apply to the single stock fund as a plan investment option." [Quatrone v. Gannett Co., Inc., No. 19-1212 (4th Cir. Aug. 11, 2020)]

Tags: Fiduciary Duties  •  Retirement Plan Investments

Laid Off Employees' 401(k) Accounts Can Mean Higher Risk and Cost
ORBA Link to more items from this source
Sept. 15, 2020

"The price tag for an annual audit can easily total $10,000 or more. This particularly significant administrative cost could disappear if you reduce the number of your plan's orphan accounts.... Another consideration is fiduciary liability. Your duty to safeguard the interests of plan participants who are no longer on your payroll -- whether they are former employees you have laid off, retirees or ex-workers who left to work for a competitor -- is the same as for your active employee participants."

Tags: 401(k) Plans  •  Fiduciary Duties  •  Retirement Plan Administration

There's No Easy Fix to the DOL Fiduciary Rule
ThinkAdvisor Link to more items from this source
[Opinion]
Sept. 15, 2020

"[T]he DOL has released a proposal that is unworkable for major segments of the insurance industry -- especially the independent distribution channel. The department's proposal would turn most insurance agents into fiduciaries, extend ERISA to 401(k) rollovers, and create a class prohibited transaction exemption that is designed for the securities industry but unworkable for independent agents. It is essentially the Obama Fiduciary Rule all over again."

Tags: Fiduciary Duties

The DOL Is Tearing Down a Landmark of Investor Protection
Kurt N. Schacht, in Barron's Link to more items from this source
[Opinion]
Sept. 11, 2020

"Corporate governance and shareholder rights have seldom witnessed an assault on investor protection like the current federal government's onslaught. Whether weakened rules on broker accountability, rules designed to eliminate shareholder proposals, or those taking direct aim at neutering proxy voting, the feds' decisions are to the great detriment of Mr. and Mrs. 401(k)."

Tags: Fiduciary Duties  •  Retirement Plan Investments  •  Retirement Plan Policy

Retirement Plans Need to Keep Their Promises. We Make Sure They Do.
Jeanne Klinefelter Wilson, Acting Assistant Secretary for EBSA, in Barron's Link to more items from this source
[Opinion]
Sept. 11, 2020

"We are committed to working for America's workers every day. By insisting that fiduciaries comply with ERISA, [EBSA] has achieved big results -- recovering more than $2.5 billion in direct payments to plans and workers last year. That amounts to more than $30,500 per investigator per day."

Tags: Fiduciary Duties  •  Retirement Plan Investments  •  Retirement Plan Policy

How to Minimize Judicial Review of ERISA Fiduciary Decisions
Seyfarth Link to more items from this source
Sept. 10, 2020

"A recent decision from the Court of Appeals for the Seventh Circuit offers help to ERISA benefit professionals who prefer to maximize judicial deference in favor of the fiduciaries.... ERISA's core focus is the governing plan documents.... [If] they provide the fiduciary with broad discretion to interpret their terms, and provide that the fiduciary decision shall be final and binding, the court should give the fiduciary the benefit of the doubt." [Bator v. District Council 4, Graphics Communications Conference, No. 19-2626 (7th Cir. Aug. 27, 2020)]

Tags: Fiduciary Duties

Editor's Pick ERISA Ruling Shows Daunting Review Standard for Claimants
DeBofsky Sherman Casciari Reynolds P.C. Link to more items from this source
Sept. 10, 2020

"[T]he presence of a circuit split on the issue of whether a late appeal decision forfeits deferential review may invite Supreme Court review.... It is also somewhat surprising that the Eighth Circuit would buck a growing trend among the circuits to find gateways to de novo review.... For plan administrators, efforts need to be taken to strictly comply with the requirements of the claim regulations. While tardiness was excused in this instance, that may not happen the next time." [McIntyre v. Reliance Standard Life Ins. Co., No. 19-2367 (8th Cir. Aug. 25, 2020)]

Tags: Fiduciary Duties  •  Health Plan Administration  •  Retirement Plan Administration


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