Retirement Plans Newsletter

April 21, 2016

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Employee Benefits Jobs

401(k) Plan Administrator, Full time
Benefit Associates, Inc.
in CA

Trust Accounting and Conversion Specialist
My Benefits, LLC
in GA, NY

Enrolled Actuary
TPA Firm
in AZ

Defined Contribution Administrator
TPA Firm
in AZ

Defined Benefit Administrator
TPA Firm
in AZ

Retirement Plan Administrator
My Benefits, LLC
in GA, NY

Pension Analyst
My Benefits, LLC
in GA

Trust Retirement Plan Services Admin
Whitney Bank
in LA

Trust Officer
Newport Group
in MN

Sales Consultant
The Angell Pension Group, Inc.
in ANY STATE

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Webcasts and Conferences

Dollars & Sense: Health Plan Affordability for Applicable Large Employers
RECORDED
(United Benefit Advisors)

Alternatives in DC Conference
May 12, 2016 in NY
(Pensions & Investments)

Understanding the Universal Availability Rules in a 403(b) Retirement Plan
May 19, 2016 WEBCAST
(IRS [Internal Revenue Service])

Health Care Litigation Under ERISA and the ACA
June 7, 2016 WEBCAST
(ABA Joint Committee on Employee Benefits [JCEB])

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[Guidance Overview]

The New Fiduciary Rules: What Do You Need to Know and Do Now? (PPT)
51 presentation slides in PowerPoint format. Topics: [1] Rollout of new rule; [2] New fiduciary advice definition; [3] Exclusions from fiduciary advice definition; [4] BIC exemption; [5] PTE 84-24; [6] Fee levelization; [7] Robo-advice; [8] Rollovers; [9] Managed accounts; and [10] Practical considerations. (The Wagner Law Group)  


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[Guidance Overview]

What Advisors Need to Know About the New Fiduciary Rule
"For years, the [DOL] issued exemptions that were extraordinarily narrow in scope and very much transaction-based. In a complete reversal, however, on the same day as it unveiled its new Fiduciary Rule, the DOL also unveiled a 300+ page document that introduced a new, broad, principal-based prohibited transaction exemption, known as the Best Interest Contract Exemption [BICE].... [T]he BICE was intentionally created to be extremely broad and covers just about all the current standard compensation models and industry practices." (Slott Report)  

[Guidance Overview]

Education or Advice: The DOL Final Definition of Fiduciary; Conflict of Interest Rule
"A notable difference between the Final Rule and the 2015 revised proposal is that the Final Rule does not consider appraisals, fairness opinions, or similar statements concerning the value of securities or other property to constitute investment advice. All appraisals and valuations, not just those for ESOPs, are excluded from the rule.... Since the Final Rule requires that an independent fiduciary have oversight of the specific designated investment alternatives, this exception does not apply to any presentations of asset allocation models or interactive investment materials to IRA owners. Presentations to IRA owners may not include specific alternatives without being considered investment advice." (Benefits Bryan Cave)  

House Committee Approves Resolution to Stop Fiduciary Rule, Protect Access to Affordable Retirement Advice
"The House Education and the Workforce Committee, chaired by Rep. John Kline (R-MN), today approved a resolution (H.J. Res. 88) to block the [DOL]'s 'fiduciary' rule and protect access to affordable retirement advice for low- and middle-income families.... Led by Rep. Roe, lawmakers advanced complementary bipartisan proposals that would require financial advisors to act in the best interests of their clients, and ensure low- and middle-income Americans have access to quality, affordable retirement advice. The House has also taken action on legislation sponsored by Rep. Wagner that would have required the department to coordinate its actions with the [SEC]." (Committee on Education and the Workforce, U.S. House of Representatives)  

Service Providers Express Tremendous Uncertainty About Changes Required to Meet New Fiduciary Regulation (PDF)
"4% of the firms indicated that they would become a fiduciary for the first time under the new regulations, while 23% would continue to be a fiduciary, and 30% said they planned to continue under a non-fiduciary status. However, 34% of firms indicated that they are unsure which direction to take.... 60% indicated that key parts of the regulation are still not clear. 75% are watching to see how their peers are interpreting and addressing the regulation. 49% are looking for guidance from industry organizations." (The SPARK Institute)  


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Potential Challenges to the DOL's Conflicted Advice Rule? (PDF)
"Some have expressed concern that the DOL went too far and 'caved' to the pressure of opponents. The fact that both proponents and opponents of the guidance have some issues with the final product is an indication that the DOL may have found some common ground.... Preventing the implementation of the rule at this stage of the process has little precedent." (Ascensus)  

DOL Accused of 'Legislation by Rulemaking' on Fiduciary Rule
"Congress 'did not intend' for DOL 'to become a primary regulator of the conduct and compensation of financial advisors to individual retirement accounts,' [former EBSA Secretary Brad Campbell] said, nor did Congress intend for the 'unique fiduciary standard of care applicable to employee benefit plans under ERISA to apply to IRAs.' " (ThinkAdvisor)  

Investment Benchmarking 'Must Do' Tasks
"[Because of the DOL's fiduciary rule,] allocations are likely to change over the next year. Revised business models, the use of algorithms via robo-advisors and modified sales compensation arrangements will almost surely result in portfolio composition shifts for some investors. Should that occur, it will be incumbent upon a service provider to craft an appropriate benchmark that reflects the new regime and then explain its rationale to each investor. Otherwise, an individual or a plan sponsor may question why the performance of a post-Fiduciary Rule collection of assets is being graded against a stale benchmark." (Good Risk Governance Pays)  

Class Action Against ESOP Sponsor, Trustees Advances
" 'An individual that has both fiduciary and business functions is liable for breach of fiduciary duty under ERISA for business decisions affecting the value of plan assets when the individual could directly profit from business decisions,' the court said.... The court declined to dismiss the class's fiduciary breach claim against Fleet Card and the Davies for allegedly failing to disclose to participants information regarding Fleet Card's financial condition. It also declined to dismiss the class's claims for co-fiduciary liability and violation of prohibited transactions, holding that the facts alleged in the complaint were sufficient to sustain these causes of action." [Carter v. San Pasqual Fiduciary Trust Co., No. 15-01507 (C.D. Cal. Apr. 18, 2016)] (Bloomberg BNA)  

Determining Your 'Best' Retirement Income Strategy: Not Necessarily an Easy Task
"[Michael Kitces recently] examined possible 'best' strategies for a 65-year old couple 'trying to decide how much to spend for a 30-year retirement from their $1,000,000 portfolio, and how that portfolio should be invested.' ... [E]ven if simple strategies are chosen, care should be taken to make sure that they represent potentially best strategies.... While [he believes] that Michael chose these three strategies to illustrate how his process night work, [this author becomes] skeptical when someone tells me that I can spend 33% more in retirement if I simply increase my investment in equities from 50% to 100% (Strategy C vs. Strategy B)." (Ken Steiner, FSA Retired)  

CBO Cost Estimate for H.R. 4293, Affordable Retirement Advice Protection Act (PDF)
"H.R. 4293, the Affordable Retirement Advice Protection Act, would amend portions of [ERISA] that prohibit self-dealing transactions by fiduciaries of employer-sponsored retirement plans. The bill would add a definition of investment advice... [and] a new statutory exemption related to investment advice that a fiduciary can provide to those plans, plan participants, or beneficiaries.... H.R. 4293 would change requirements regarding disclosure of potential compensation accruing to the fiduciary or an affiliate.... CBO and the staff of the Joint Committee on Taxation (JCT) estimate that the bill would have a negligible effect on revenues over the 2017-2026 period. Enacting the bill would not affect direct spending." (Congressional Budget Office [CBO])  

[Opinion]

Why Luring 401(k) Assets to IRA Rollovers in a Post-DOL-Rule World Remains Child's Play, Which Keeps $7.6 Trillion in the IRA Game and Growing
"Assets will flow unimpeded to IRAs from 401(k) plans for two very different kinds of reasons, says Bing Waldert, managing director of Cerulli.... [T]he final DOL rule was watered down over the course of its protracted comment period to make it possible for a broker to have a client sign away protections by means of an exemption to the best interest contract. In other words, brokers are accustomed to saying: 'If you don't mind initialing this: It just says we're doing the best we can for you. I have a better pen if you need one.' ... Investors are unlikely to register that change amid the barrage of paper they are wading through[.]" (RIABiz)  

[Opinion]

Assessing the Final DOL Fiduciary Rule
"[M]any of the critical fixes to the Fiduciary Rule called for by the U.S. Chamber of Commerce remain unaddressed or were made worse in the final rule. These include important issues such as whether the final rule discriminates against small businesses, limits the availability of investment education, substantially increases litigation risk to the detriment of savers and the retirement system, and gives insufficient time to implement the final rule." (U.S. Chamber of Commerce)  

Benefits in General

CBO Cost Estimate for H.R. 4294, Strengthening Access to Valuable Education and Retirement Support Act of 2015 (PDF)
"H.R. 4294, the Strengthening Access to Valuable Education and Retirement Support Act of 2015, would amend the section of the Internal Revenue Code that prohibits self-dealing transactions by fiduciaries of certain tax-favored plans, including employer-sponsored retirement plans, individual retirement accounts, and health savings accounts. The bill would add a definition of investment advice ... [and] a new statutory exemption related to investment advice that a fiduciary can provide to those tax-favored plans, plan participants, or beneficiaries.... H.R. 4294 would change requirements regarding disclosure of potential compensation accruing to the fiduciary or an affiliate.... The staff of the Joint Committee on Taxation (JCT) estimates that the bill would have a negligible effect on revenues over the 2016-2026 period. Enacting the bill would not affect direct spending." (Congressional Budget Office [CBO])  

Executive Compensation and Nonqualified Plans

Questions About Recent ISS Study on the Impact of Board Leadership Structures on CEO Pay
"ISS argues that CEOs of companies with boards chaired by an 'insider' have higher compensation than CEOs of companies with boards chaired by an 'outsider.'... To blindly follow ISS's conclusion would require shareholders to oust from the board the very leaders who have made many of these companies attractive investments in the first place and who have carefully applied the very principles that ISS espouses." (Jones Day)  

Press Releases

DOL Investigation Helps Boise Medical Employer Correct Violations in Its FMLA Protocols
Employee Benefits Security Administration [EBSA], U.S. Department of Labor

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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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