Retirement Plans Newsletter

April 20, 2016

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Webcasts and Conferences

Vision, Dental, But No Hearing? Why Do Employers Need a Hearing Benefit?
RECORDED
(University Conference Services)

Strategies to Control Specialty Drug Costs
RECORDED
(University Conference Services)

Implementing the DOL's Fiduciary Rule
May 11, 2016 in NY
(SIFMA [Securities Industry and Financial Markets Association])

Implementing the DOL's Fiduciary Rule
May 11, 2016 WEBCAST
(SIFMA [Securities Industry and Financial Markets Association])

ACFC Exam Preparation Session 7: Preparing for DOL Audits
July 6, 2016 WEBCAST
(ECFC [Employers Council on Flexible Compensation])

ACFC Exam Preparation Session 8: Employer Reporting and Compliance Calendar
July 20, 2016 WEBCAST
(ECFC [Employers Council on Flexible Compensation])

Getting It Right - Know Your Fiduciary Responsibilities
July 20, 2016 in WI
(Employee Benefits Security Administration [EBSA], U.S. Department of Labor)

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Discussions


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[Guidance Overview]

2015 Annual Funding Notice: PBGC Filing Information
"Multiemployer plans may continue to file the 2015 AFN and other notices -- 'zone' notices, PBGC notices for plans 'avoiding yellow' or 'not electing early red' as added by the Multiemployer Pension Reform Act of 2014, and notices of amortization extension applications under Section 431 of the Internal Revenue Code (together, Other Notices) -- by e-mail ... or mail ... Alternatively, multiemployer plans may, but are not required to, file the AFNs and Other Notices with PBGC through the new e-filing portal, launched by the PBGC in December of last year." (Segal Consulting)  


[Advert.]

P&I Alternatives in DC Conference | May 12 | New York

Sponsored by Pensions & Investments

Register for this FREE, one-day event to learn about the benefits alternatives can provide. You'll learn how to choose assets, design the plan menu, incorporate alternative assets, and educate plan participants on new investment options.



[Guidance Overview]

Employer Action Required Following Issuance of DOL Final Fiduciary Rule
"Employers should ... expect that advisors may want to renegotiate their service arrangements for various reasons, such as: [1] To change the scope of investment advice or education provided to the plan or its participants, [2] To revise compensation arrangements to ensure that no prohibited transaction occurs by virtue of the receipt of such compensation, [3] To provide necessary disclosures or acknowledgments to ensure the arrangement fits within an applicable exception to the final rule, and [4] To incorporate required provisions under the newly issued Best Interest Contract Exemption or other applicable prohibited transaction exemptions and advisory opinions to avoid exposure to possible excise taxes." (Winstead PC)  

[Guidance Overview]

The DOL's Final Fiduciary Rule Is Here: a First Look for Plan Sponsors (PDF)
54 presentation slides. Topics: Why the need for a new fiduciary rule? Who is a fiduciary? A review of the 1975 Rule; The rulemaking process and the Proposed Rule; Why plan sponsors should pay attention; Final Rule brings new definition of investment advice; Exceptions; Compensation requirement; Best Interest Contract (BIC) exemption; and Implementation deadlines. (Trucker Huss)  

[Guidance Overview]

DOL Finalizes Fiduciary Definition and Conflict of Interest Rule
"The final rule first describes the kinds of communications or categories of advice that constitute 'investment advice.' It then describes the types of relationships and circumstances that give rise to fiduciary investment advice and thus subject the advice provider to fiduciary standards and certain prohibited transaction rules intended to address conflicts of interest and those types in which they do not. [This article includes] summaries of these two parts of the final rule, along with observations on the differences between the final rule and the proposed rule." (Proskauer Rose LLP)  

[Guidance Overview]

A Brave New World for Investment Advisors Following Issuance of Final Rule
"As a fiduciary investment advisor to an ERISA-governed plan, the person will become subject to the fiduciary standards of care under ERISA and could be personally liable for losses resulting from the recommendations given to the plan or participants. It is irrelevant whether the plan to which the advice is provided is a participant-directed plan under ERISA Section 404(c). Although fiduciaries are not generally liable under an ERISA 404(c) plan for investment losses that are the direct and necessary result of the participants' directions, that protection does not extend to advice that is provided to the participants imprudently or that implicates a prohibited transaction." (Winstead PC)  


[Advert.]

70-1/2 Year Olds NOT in Pay Status?

Sponsored by Pension Benefit Information, Inc.

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[Guidance Overview]

IRS Withdraws Proposed Regs That Could Have Limited QSERPs (PDF)
"Even with the changes to the Proposed Regulations, the IRS still remains concerned about qualified retirement plan benefit formula designs that attempt to circumvent the nondiscrimination testing rules.... Specifically, the IRS mentioned that plan designs that pass the numerical tests under the existing nondiscrimination rules may still run afoul of the rules if the designs are structured in manner that provides little or no benefits to nonhighly compensated employees." (Groom Law Group)  

[Guidance Overview]

GASB Issues Statement 82 -- Pension Issues Amending GASB Statements 67, 68 and 73
"The primary purpose of Statement No. 82 is to improve financial reporting by enhancing consistency in the application of financial reporting requirements to certain pension issues.... Affected plans and plan sponsors in consultation with their auditors and actuaries need to determine whether any changes are needed for future financial reporting and if any of the changes require prior financial statements to be restated to meet the statement's requirements for the classification of employer paid member contributions or the presentation of payroll-related measures." (Cheiron)  

Negotiating Cybersecurity Contractual Protections for Retirement Plans
"Most contracts prepared by TPAs for recordkeeping and related services do not provide adequate contractual protections relating to data security.... [It] is incumbent on plan sponsors to raise the issue with their TPAs and propose appropriate contractual protections.... With possible exceptions for certain large transactions, plan sponsors and/or plan administrators should not expect TPAs to agree to comply with the cybersecurity policies of the plan sponsor and/or plan administrator.... Plan sponsors and/or plan administrators will need to conduct due diligence of the TPA's cybersecurity practices and procedures to provide a level of comfort that plan participant data is appropriately protected." (Pillsbury Winthrop Shaw Pittman LLP)  

New Church Pension Plan Lawsuit Makes Seven Filed in Past Month
"Since March 17, lawsuits have targeted two Cincinnati hospitals, St. Elizabeth Medical Center and Mercy Health, and Illinois-based Wheaton Franciscan Services. Maryland-based Bon Secours and Missouri's SSM Health Care Corp. each have been sued twice.... Nearly all of these lawsuits have been filed by two pairs of plaintiffs' law firms, which are increasingly targeting the same hospital defendants." (Bloomberg BNA)  

House Committee to Mark Up Resolution Blocking Fiduciary Rule, Protecting Access to Affordable Retirement Advice
"On Thursday, April 21 at 9:00 a.m., the Committee on Education and the Workforce, chaired by Rep. John Kline (R-MN), will consider a resolution (H.J. Res. 88) that would block the [DOL]'s controversial 'fiduciary' rule. The resolution was introduced by Rep. Phil Roe (R-TN), chairman of the Subcommittee on Health, Employment, Labor and Pensions, along with Reps. Charles Boustany (R-LA) and Ann Wagner (R-MO)." [Live webcast of the hearing will be available online.] (Committee on Education and the Workforce, U.S. House of Representatives)  

A New Self-Assessment Tool for Advisors
"The tool arrives as firms still absorb the new fiduciary rules for retirement advisors issued by the [DOL]. The head of the SEC, meanwhile, recently said that staffers at the agency are continuing work on a uniform standard that would extend fiduciary obligations to broker-dealers." (On Wall Street)  

[Opinion]

A Case for Suing the DOL Over Its Fiduciary Rule
"[In] creating the Fiduciary Rule, the [DOL] never analyzed the impact on the fixed annuity marketplace, including the fixed indexed annuity marketplace. Also, by their own admission, in the flawed impact analysis they did conduct, they did only a cursory review of variable annuities ... As a result, they failed in their primary duty to Congress to provide a thorough analysis of both the costs and the benefits the rule will provide in the marketplace(s) it will affect. The department used selective and inconclusive analysis and arrived at their predetermined justification ignoring the multibillion dollar marketplace of IRA annuities." (InsuranceNewsNet.com)  

[Opinion]

What is a Discount Rate and Why Does It Matter?
"Over the long term, public pensions have met, or exceeded, their investment target goals. They will experience year-to-year fluctuations, but over 25-30 years, the plans will usually meet their goals.... [O]ne study found that the 25 year median investment return for public pension plans was 8.3 percent, higher than the assumed investment return. By using an interest rate that is unreasonably low, [Stanford economist Josh Rauh] is creating the impression that pension funds are far worse off than they are. His so-called studies are then picked up and passed off as evidence in the political arena to justify closing pension funds down." (National Public Pension Coalition)  

Benefits in General

District Court: Claim of Intentional Infliction of Emotional Distress is Narrow Enough to Avoid ERISA Preemption
"The governing rule is that so long as the claim could result in relief irrespective of the outcome of the ERISA claim, the plaintiff states a viable cause of action and is able to survive a motion to dismiss. However, if the claim is linked to or intertwined with the underlying ERISA claim such that the success or failure of the claim would depend on a favorable decision on the benefit claim, it will be pre-empted.... Here, the court ... [concluded] that the intentional infliction of emotional distress claim was not preempted. However, if [the participant] had alleged an entitlement to emotional distress damages solely on account of the claim denial or alleged consequential damages on account of a delay in processing his claim, such as asserting an eviction from his home due to the delay, such a claim would easily have been found pre-empted." [Kresich v. Metropolitan Life Ins. Co., No. 15-cv-05801 (N.D. Cal. Apr. 4, 2016)] (DeBofsky & Associates, P.C.)  

Executive Compensation and Nonqualified Plans

Rationalizing the Dodd-Frank Clawback
69 pages. "[T]he SEC's proposed Dodd-Frank clawback, while reducing executives' incentives to misreport, is overbroad. The economy and investors would be better served by a more narrowly targeted 'smart' excess-pay clawback that focuses on fewer issuers, executives, and compensation arrangements." (Jesse M. Fried, Harvard Law School, via SSRN)  

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BenefitsLink Retirement Plans Newsletter, ISSN no. 1536-9587. Copyright 2016 BenefitsLink.com, Inc. All materials contained in this newsletter are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of BenefitsLink.com, Inc., or in the case of third party materials, the owner of that content. You may not alter or remove any trademark, copyright or other notice from copies of the content.

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