ASPPA

Defined Contribution Plan Administrator
San Diego Pension Consultants
in CA

Pension Administrator
Employee Benefit Resources, Inc.
in MT

Retirement Service Consultant
Ascensus
in MN

Assistant Plan Administrator
TPA Firm located in Hunt Valley, MD
in MD

Sr Manager Plan Documents
Great-West Financial
in CO

Retirement Services Consultant
CUNA Mutual Group
in WI

Attorney - ERISA
UNITE HERE HEALTH
in IL

Actuarial Analyst
USI Consulting Group
in NY

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Choosing a Retirement Solution For Small Businesses Workshop
June 9, 2015 in MA
(Employee Benefits Security Administration [EBSA], U.S. Department of Labor)

28th Annual Cincinnati Employee Benefits Conference
June 11, 2015 in OH
(Cincinnati Bar Association)

Employer Round Table
June 30, 2015 in IL
(Midwest Business Group on Health)

Employer Forum on Pharmacy Benefits and Specialty Drugs
July 15, 2015 in IL
(Midwest Business Group on Health)

View All Webcasts and Conferences

[Guidance Overview]

DOL Reproposed Rules Governing the Definition of 'Fiduciary,' Part 2: The 'Best Interest Contract' Exemption
"[The Best Interest Contract (BIC)] exemption does not apply to advisers who advise on the selection on a menu of investment options.... The exemption exposes advisers and financial institutions to class action claims based on required warranties, which may involve an unacceptable level of risk.... The BIC exemption does not bar arbitration provisions as potential plaintiffs might have hoped, but it does ensure access to the courts for class actions. In the case of ERISA-covered retirement plans, this will likely mean access to federal court with limits on remedies.... The adviser must acknowledge, and will be subject to, fiduciary status. Accordingly, the adviser will be subject to ERISA-like standards, but remedies will not be limited in the case of IRAs." (Mintz Levin)  

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[Guidance Overview]

Top Points from the DOL Proposal to Expand the Definition of Fiduciary
"[A]dvice does not have to be provided on a regular basis to result in fiduciary status. Thus, one-time contacts with a plan or IRA may result in fiduciary status.... The most restrictive provision of the best interest contract exemption is the definition of the 'assets' that qualify for the exemption.... Excluded from this definition is any equity security that is a security future or a put, call, straddle or other option or privilege of buying an equity security from or selling an equity security to another without being bound to do so." (DLA Piper)  

It's Unanimous: The Fiduciary Duty to Monitor Has Teeth
"[T]he Court's analysis makes it less likely that fiduciaries will be able to have duty-to-monitor claims dismissed on statute of limitations grounds before substantial discovery takes place.... [T]he precise scope of the duty to monitor is now fertile ground for additional litigation.... [The opinion] declares that 'a fiduciary normally has a continuing duty of some kind to monitor investments and remove imprudent ones' within a reasonable time.... [This language] supports the notion that, in most cases, ERISA fiduciaries should completely remove investment funds they deem to be imprudent from the plan's lineup." [Tibble v. Edison Int'l, No. 13-550 (U.S. May 18, 2015)] (Spencer Fane)  

Set It and Forget It? Not So Fast, Says the Supreme Court
"In effect, the Court adopted a 'continuing violation' approach to ERISA's statute of limitations, meaning that a participant will be able to pursue claims against a plan fiduciary for failing to properly monitor investments and remove imprudent ones if the failure to monitor and/or remove occurs within six years of the suit." [Tibble v. Edison Int'l, No. 13-550 (U.S. May 18, 2015)] (Ogletree Deakins)  

Tibble v. Edison Decision Sidesteps Numerous Questions
"Given that the Court emphasized a wholly separate duty applicable to investment practices -- i.e., a well-established duty to monitor investments -- it does appear that the Court opted not to recognize any continuing-violation doctrine. Similarly, given the Court's focus on the Uniform Prudent Investors Act, the application of Tibble should be limited to imprudent-investment claims, where there is a clearly established, ongoing duty to monitor, or at least those species of fiduciary claims where there is recognized duty of an ongoing nature." [Tibble v. Edison Int'l, No. 13-550 (U.S. May 18, 2015)] (Jackson Lewis P.C.)  

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ERISA Fiduciaries Must Continuously Monitor 401(k) Investment Choices
"[T]he Supreme Court held that ERISA's fiduciary duty is derived from the common law of trusts, which creates a continuing duty -- separate and apart from the duty to exercise prudence in selecting investments in the first place -- to monitor funds and remove imprudent investments.... With tougher Labor Department scrutiny on fees paid by 401(k) plan participants, it is more important than ever that employers maintain an active and sophisticated benefits committee to oversee the selection and monitoring of investments for their plans." [Tibble v. Edison Int'l, No. 13-550 (U.S. May 18, 2015)] (Fisher & Phillips LLP)  

U.S. Supreme Court Sends ERISA Investment Fee Case Back for Further Review
"It will not be enough to simply plead that defendants failed, within six years of filing suit, to prudently monitor an investment option. Rather, as the Supreme Court articulated many years ago, a plaintiff must be able to plead a plausible claim. That is, plaintiffs will have to plead 'enough factual matter' to 'nudge their claims across the line from conceivable to plausible.' " [Tibble v. Edison Int'l, No. 13-550 (U.S. May 18, 2015)] (Proskauer's ERISA Practice Center)  

DOL Extends Comment Period on Fiduciary Reproposal
"The comment period for what the DOL calls the Conflict of Interest Notice of Proposed Rulemaking has been extended by 15 days -- from 75 to 90 days -- which the DOL said means that the opportunity for public comments on this proposal may be over 140 days. A notice announcing the extension of the comment period, as well as the dates of the public hearings, which will take place during the week of Aug. 10, 2015, will be published in a forthcoming edition of the Federal Register." (American Society of Pension Professionals & Actuaries [ASPPA])  

Pension Liabilities: It's All About the Interest Rates
Infographic. "When the discount rate increases the projected benefit obligation (PBO), or pension liability, decreases, and vice versa. This relationship explains the volatile nature of pension liabilities and demonstrates why liabilities-driven investment strategies, which manage funded status and limit volatility of pension liabilities and asset returns, are useful." (Milliman Retirement Town Hall)  

ESOPs in the Air
"[W]hat is it that has Democrats who have not been ESOP advocates, and who do not serve on a tax or labor committee, interested in promoting ESOPs? ... [The Center for American Progress] sponsored a 'summit' of top economists and opinion leaders that issued a paper [which included] a straightforward endorsement of policies to increase 'ownership' among more Americans, and ESOPs were specifically cited as an example of a program that did broaden ownership.... [E]conomist Peter Orszag ... [wrote] a very straight-to-the-point opinion piece ... stating that President Obama needed to be forceful in promoting more ownership among Americans, citing ESOPs ... [On] two recorded occasions ... for the first time since Robert Reich was Secretary of Labor, the current Secretary of Labor, Thomas Perez, gave a glowing endorsement of ESOPs as good policy." (The ESOP Association)  

[Opinion]

Retirement in the Land of Lincoln: The Illinois Secure Choice Savings Program Act
"Illinois has now become the first state to complete legislative enactment of a state-mandated, state-operated retirement system for private employers.... That, as a matter of law, the Illinois private sector retirement arrangement qualifies under the Code and ERISA does not mean that this arrangement is sound as a matter of policy. The choices made by Illinois' legislators are noteworthy because they represent the choices of the first state to authorize a state-operated, state-mandated private sector retirement program. Those choices are thus an important contribution to a critical national debate, but will not end that debate." (Prof. Edward A. Zelinsky via SSRN)  

Arbitration: ERISA's New Playground (PDF)
"At the ripe old age of 41, the ERISA statute finds itself at a crossroads. Although the momentum of new ERISA rules and regulations is accelerating, the actual number of high-stakes lawsuits is declining. Why is that? ... Employers of all stripes are increasingly mandating arbitration of employment disputes, including ERISA disputes. Not only are employers mandating that employees agree to mandatory arbitration, they are including a waiver of class action claims as part of the arbitration agreement. By including class action waivers in the employee arbitration agreement, the employer blunts the economic incentives for plaintiffs' lawyers to pursue employee plan benefit claims." (Baker & McKenzie, via Benefits Law Journal)  

ERISA Participant's Supplemental Submission Doesn't Restart Exhaustion Clock
"A federal district court in New Jersey held that supplemental documentation submitted by a participant in connection with the claims review process did not restart the clock for a claims administrator to decide the participant's appeal.... Prudential argued that it had 90 days from the date Plaintiff submitted her supplemental documentation, not 90 days from the date her appeal was initially submitted. According to the court, the 90-day clock did not restart upon the submission of the additional documentation." [Lewis-Burroughs v. The Prudential Ins. Co. of Am., No. 14-cv-1632 (D.N.J. Apr. 30, 2015)] (Proskauer's ERISA Practice Center)  

GAO Report on Regulatory Guidance Processes: DOL and HHS Could Strengthen Internal Control and Dissemination Practices
"DOL's [written departmental procedures for approval of significant guidance] were not available to staff and required updating. HHS had no written procedures.... [DOL] posted their significant guidance on a departmental website as directed by OMB; HHS did not.... However, GAO identified factors that hindered online access, including long lists of guidance and documents dispersed among multiple web pages.... GAO is recommending that HHS and DOL ensure consistent application of OMB requirements for significant guidance. GAO also recommends that ... [HHS and DOL] strengthen the use of internal controls in guidance production processes and improve online guidance dissemination." (U.S. Government Accountability Office [GAO])  

Companies That Failed Say-on-Pay in 2015
"As of May 15, 2015. 1,009 companies held Say on Pay votes in 2015. 15 companies (1.5%) have failed with an average 61% 'Against' vote. 6 have failed votes in previous years. 3 had 1-year total shareholder returns of over +10%. 2 received +90% 'For' votes in 2014's vote." (Steven Hall & Partners)  

SageView Advisory Group Expands By Adding Retirement Plan Consultant to Northeast Practice
SageView Advisory Group

Statement from ERIC CEO and President Annette Guarisco Fildes on Supreme Court's Ruling in Tibble v. Edison
ERIC [ERISA Industry Committee]

Americans Participating in 401(k) Plans Give Bank of America Merrill Lynch Highest Marks in a Study of Financial Empowerment, Literacy and Trust
Bank of America

Jessica W. Catlow Elevated to Member of Mintz Levin
Mintz Levin

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