"[T]he lion's share of the amount recovered in enforcement actions was from EBSA's Terminated Vested Participant Project (TVPP), which encompasses EBSA's missing participant initiative. EBSA reported that the TVPP resulted in a recovery of over $1.5 billion."

"The Eighth Circuit ... held that ordinary summary-judgment procedures under FRCP 56 apply in ERISA benefit cases where the administrator lacked discretionary authority. Parties in an ERISA case that want the district court to exercise its factfinding function under FRCP 39(b) and 52(a)(1) to decide the case on the administrative record should request that the district court do that." [Avenoso v. Reliance Standard Life Ins. Co., No. 21-1772 (8th Cir. Nov. 30, 2021)]

"The SECURE Act has made embedding annuities in 401(k)s more appealing to employees and safer for employers. However, there are steps an employer must take to ensure compliance with the safe harbor provision."

"When auditing a 403(b) plan, the IRS auditor may request a sampling of W-2s to verify that only elective deferrals have been reported in Box 12. The W-2s also enable an IRS examiner to assess whether an employer's payroll system contribution reporting aligns with the human resources records. As the IRS 403(b) Examination Guidelines note, 'Discrepancies should be explained, and if significant, investigated further.' "

"Fraud concerns have prompted [PBGC] to take down a public database that previously helped retirement-plan participants track down their benefits ... Many people ... have also lately had trouble obtaining key information that the Social Security Administration typically provides about private retirement benefits ... The new challenges come at a time when the pandemic is expected to exacerbate the longstanding problem of retirement plan sponsors losing track of their participants."

"With plan review season in full swing, now is a great time to sit down with your plan sponsor clients and review their existing menu of plan services and fees. This is an ideal opportunity to check in to make sure you're not leaving untapped business on the table and a prime time to reinforce the value you bring to the relationship. It's also a chance for you to offer new services[.]"

"In most instances, the claimant has the burden of proof by a preponderance of the evidence that they are entitled to benefits.... What is the definition of a 'Preponderance of the Evidence'? What's different about ERISA cases? When does the burden of proof shift to the insurance company?"

"[The DOL states] that you need to first provide a notice, on paper, that the participant will be emailed/texted at a specific specified email address/smartphone number with the information necessary to access the website where the SPD will be posted. After that you would then email/text the notice (described as a 'notice of internet availability' in the final rule) that is similar to what you proposed be included in your new hire packet."

"For a defined contribution plan, such as a 401(k) or 403(b), an in-service distribution at 59½ is a fairly straightforward process. However, in a defined benefit plan, such as a pension, an age 59½ in-service lump sum distribution must satisfy one of three thresholds before a Highly Compensated Employee or Highly Compensated Former Employee (as defined by the IRS) can receive their lump sum in-service distribution."

"Even after the DOL modified the requests to address some of Alight's concerns, Alight still asserted that the subpoena would require it to pull, review, and produce potentially tens of thousands of documents related to its ERISA business. Weighing the relevance of the requests against the burden on Alight, however, the Court found the balance favored the DOL." [Walsh v. Alight Solutions, LLC, No. 20-2138 (N.D. Ill. Oct. 28, 2021)]

"[T]he judge noted that claimants do not have to request a document using its precise name if the request is sufficiently clear to give the plan administrator notice of the information the claimant seeks.... [But] the court found that even if the plaintiff had specifically requested the 1990 plan document, the plan would not have been obligated to produce it ... because the plan administrator used the 2017 plan document to administer the plan during the period relevant to this case, not the original 1990 one." [Theriot v. Building Trades United Pension Trust Fund, No. 20-30126 (5th Cir. Mar. 12, 2021)]

"In FY 2021, EBSA closed 1,072 civil investigations with 741 of those cases (69%) resulting in monetary results for plans or other corrective action.... EBSA's enforcement program helped 16,024 terminated vested participants in defined benefit plans collect benefits of $1.548 billion owed to them.... In FY 2021, EBSA obtained 449 non-monetary corrections ... [including] removal of 6 fiduciaries, orders barring 34 individuals from acting as fiduciaries, court appointments of 16 independent fiduciaries, and 124 cases involving reforms of plan procedures, such as improved search procedures for missing participants."

"The values [in this table] apply to benefits with annuity starting dates in 2022. View a two-column spreadsheet version ... The 2022 table was developed using the 417(e) segment rates for August 2021 (0.66%, 2.50% and 3.12%, respectively) for plan years beginning in 2022 and the 417(e) applicable mortality table for 2022."

"Proposal to determine financial statement audit requirement based on the number of accounts rather than the number of eligible participants.... Low participation plans want a change in participant-count methodology to allow more plans to use simplified reporting and avoid the audit.... Timing of the proposed changes if adopted."

"[R]egularly conducting 'mini' plan audits allows compliance to be broken down into more manageable, bite-sized pieces. These voluntary reviews require minimal time and resources and can pay big dividends. Not only do they help ensure plans are running smoothly in advance of a required plan audit, they also may uncover issues that aren't on an accountant or auditor's watchlist."

"This document cancels the public hearing on proposed amendments to the regulations on user fees for the special enrollment examinations for enrolled agents and enrolled retirement plan agents." [Hearing was previously scheduled for Nov. 23, 2021.]

"The type of documentation that the DOL has requested as part of its recent audits is quite comprehensive, including basically all information and documentation that an organization has relating to its information security systems.... [P]lan sponsors and fiduciaries should consider how much of the [listed] documentation they can provide in the event of an audit."

"Plans may need to adopt amendments by December 31, 2021, even if the plan's plan year is not the calendar year ... Safe harbor notices must describe the general terms of the plan and the requirements, if any, to receive safe harbor contributions.... Required Minimum Distributions."

"The court squarely rejected the Company's arguments that the DOL's subpoena power only extends to ERISA fiduciaries, finding the DOL ... may investigate 'merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.' The court also found that the requests were not too indefinite ... [and that they] were relevant to the investigation[.]" [Walsh v. Alight Solutions, LLC, No. 20-2138 (N.D. Ill. Oct. 28, 2021)]

"At this time, there is no federal requirement for recordkeepers of qualified retirement plans to issue privacy notices to plan participants.... In practice, ... some third-party administrators (TPAs) who administer both health plans [regulated by HIPAA] and retirement plans (regulated by [ERISA]) have adopted similar security protection practices for both areas, including sending out Privacy Notices."

"This notice provides guidance on the corporate bond monthly yield curve, the corresponding spot segment rates ... and the 24-month average segment rates ... [as well as] the interest rate on 30-year Treasury securities ... as in effect for plan years beginning before 2008 and the 30-year Treasury weighted average rate[.]"

"[T]he Act restores the automatic application of the mandatory 60-day [disaster relief deadline extension], further tweaks the requirements for the mandatory 60-day extension, and adds 'significant fire' as an event for which the IRS can issue relief ... These changes to the disaster relief are effective for federally declared disasters that occur after November 15, 2021."

"Faced with the need to demonstrate compliance with required amendments to auditors and other third parties on an ongoing basis, some employers have adopted a procedure, which uses the 'self-help' resources established by the IRS in Revenue Procedure 2016-37 ... [Y]ou can begin now with the 2020 plan year by reviewing your plan against IRS Notice 2020-83 and the current updated Operational Compliance List and documenting the results."

2-page calendar lists notable deadlines for retirement plans with calendar-year plan years.

"Two recent fiduciary victories provide valuable insights into how a court would evaluate the decisions and processes of plan committees.... The fiduciaries in both cases had evidence of a process for reviewing fees and investment options, which persuaded both courts that the fiduciaries acted prudently."