Retirement Plans Newsletter

August 26, 2016

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Webcasts and Conferences

Higher Education Institutions Beware: New ERISA Class Action Lawsuits on the Rise
September 8, 2016 WEBCAST
Jackson Lewis LLP

Navigating the Fiduciary Landscape
September 15, 2016 in GA
Mazursky Constantine LLC

401(k) BB 06: The Average Benefit Test
September 22, 2016 WEBCAST
FIS Relius Education

ACA and Benefits Compliance Update
September 22, 2016 WEBCAST
Frenkel Benefits, LLC

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[Official Guidance]

Text of Treasury Department Notice of Revised Application by Iron Workers Local 17 Multiemployer Pension Plan for Reduction in Benefits
"The Board of Trustees of the Iron Workers Local 17 Pension Fund ... has submitted a revised application ... to reduce benefits under the plan in accordance with the Multiemployer Pension Reform Act of 2014 (MPRA). This revised application was submitted on July 29, 2016 ... following the withdrawal of the application that it submitted on December 23, 2015. The purpose of this notice is to announce that the revised application has been published on the Treasury website and to request public comments on the application from interested parties[.]"
U.S. Department of the Treasury

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[Guidance Overview]

New IRS Self-Certification Procedure Eases Complexity of Obtaining Waiver of 60-Day Time Limit on Rollovers
"[T]he IRS reserves the right, in the course of examining the individual's tax return, to consider whether the requirements for a waiver have been met. Importantly, the IRS states that it may conclude that the reason cited in the self-certification for missing the rollover 'did not prevent the taxpayer from completing the rollover within 60 days following receipt' of the distribution. In that event, the individual would be treated by the IRS as taxable on the distribution and could face the assessment of interest and penalties."
Blank Rome LLP

Text of Seventh Circuit Opinion: ESOP Participants Not Required to Plead Inadequate Consideration in Claim of Prohibited Transaction (PDF)
18 pages. "The complaint alleges a purchase of employer stock by the Plan and a loan by the employer to the Plan, both of which are indisputably prohibited transactions ... GreatBanc [as Plan Trustee] can prevail only if it can take advantage of one of [ERISA] section 408's exemptions. It never raised any such affirmative defense, however; it took the position instead that the plaintiffs have the burden of pleading facts that would negate the applicability of section 408's exemptions and that they failed to do so.... [This Court finds that] section 408 exemptions are affirmative defenses for pleading purposes, and so the plaintiff has no duty to negate any or all of them." [Allen v. GreatBanc Trust Co., No. 15-3569 (7th Cir. Aug. 25, 2016)]
United Sates Court of Appeal for the Seventh Circuit

ERISA Litigation Boom Forces Plaintiffs' Lawyer Standoffs
"With more than 130 [ERISA] class actions filed over the past year, it was perhaps unavoidable that some defendants would face lawsuits spearheaded by different plaintiffs' attorneys. In these cases, judges are often the ones to decide which plaintiffs' firms will get to see the case through to completion -- and share in a potential multimillion-dollar settlement or judgment. On Aug. 24, a federal judge in Maryland resolved a stand-off between two pairs of plaintiffs' firms, which each sued Bon Secours Health System Inc. for alleged ERISA violations within a week of each other."
Bloomberg BNA

Tough Questioning In DOL Rule Injunction Hearing
"Philip D. Bartz opened the industry's legal assault on the federal fiduciary rule Thursday with 90 minutes of tough questioning from U.S. District Court for District of Columbia Judge Randolph J. Moss. Bartz represents the National Association for Fixed Annuities in the first of three lawsuits against the DOL.... At one point, Bartz and Moss had an extended back and forth about whether the DOL has the authority to extend ERISA law to IRAs."
InsuranceNewsNet.com

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Syllabus and Reading List for 2016-17 Actuarial Exams (PDF)
35 pages, dated July 2016, revised on Aug. 18, 2016. Covers November 2016 Pension EA-2 (Segment F) Examination, May 2017 Basic EA-1 Examination, and May 2017 Pension EA-2 (Segment L) Examination. "Candidates are urged to develop a thorough understanding of the conditions generally or specifically applicable to all examination questions as set forth later in this examination program. Conditions for each examination will be included in the applicable examination booklets."
American Society of Pension Professionals & Actuaries [ASPPA]; Joint Board for the Enrollment of Actuaries [JBEA]; Society of Actuaries

DOL Finalizes Rules for State-Run Private-Sector Retirement Programs
"The final rules, by clarifying that such programs would not be covered by ERISA, remove the hesitation that some states have expressed about being pre-empted by federal regulators.... The proposed rule for cities and counties offering their own programs ... could potentially apply to many more workers in states that do not have their own programs. Cities and counties can only offer a program if one is not offered in the state."
Pensions & Investments

The Mortality Effects of Retirement: Evidence from Social Security Eligibility at Age 62
"Many individuals decide to claim Social Security as soon as they can after turning age 62. There is a coincident increase in mortality soon after turning 62. The mortality increase is robust for males but not for females. The increase in mortality seems to be more connected to stopping work than to claiming Social Security itself."
Center for Retirement Research at Boston College

Puerto Rico's Pensions: $2 Billion in Assets, $45 Billion in Liabilities
"Puerto Rico's constitution calls for the island to pay its general-obligation bonds ahead of public services or pensions, but a law signed by President Barack Obama in June clouds that hierarchy by directing the new board to ensure pensions are adequately funded.... Cutting payouts to debtholders ahead of pensions will inflame creditors, but cutting pension payments to plan members could accelerate the migration and economic decline that the oversight board is tasked with stemming."
The Wall Street Journal; subscription may be required

[Opinion]

Covering Up the Public Pension Crisis
"On Aug. 1, the American Academy of Actuaries and the Society of Actuaries shut down a 14-year-old task force on pension financing when several members were about to publish a paper that found many state and local retirement systems calculate their obligations using overly optimistic future rates of return. The authors want states and municipalities to adopt new valuation standards that would make projecting the cost of future benefits more predictable. The problem is that this change would also make many public pension funds seem far more indebted than they are under current standards."
The Wall Street Journal; subscription may be required

[Opinion]

ICI Responds to DOL Final Rule on State-Run Retirement Programs
"[T]his is the same [DOL] that has just imposed a massive new set of 'fiduciary' regulations -- projected to cost retirement savers $109 billion over the next 10 years -- on private-sector retirement plans, IRAs, and their advisers, with little justification. Yet the DOL now plans to turn a blind eye on the track record of mismanagement and abuse in state-run programs -- whether public employee pension plans or municipal securities disclosure -- and exempt new state plans from bedrock investor protections that the private sector has been subject to for 40 years."
Investment Company Institute [ICI]

[Opinion]

DOL Publishes Final Rule on State-Run Retirement Programs
"Employers may not contribute to these programs, and their participation in the program must be required by state law, not voluntary. Additionally, employer activity must be limited to ministerial activities ... Unfortunately, the final regulation did not address [concerns raised in comment letters] -- creating an unlevel playing field for the private sector compared with the latitude the final regulation provides the state-run alternatives."
National Tax-Deferred Savings Association [NTSA]

[Opinion]

DOL Fiduciary Rule: On a Collision Course with the Law?
"The three lawsuits differ on some counts, notably in respect to alleged constitutional violations ... But the lawsuits also have much in common. Chief among the shared charges: that the DOL overstepped its authority in crafting the conflict of interest rule, starting with its expanded definition of fiduciary."
Warren Hersch, in Producers Web

Benefits in General

Ninth Circuit Joins Others in Concluding Penalties Don't Apply to Requests for Claims-Related Documents
"The Ninth Circuit joins several other circuits ... as well as a number of trial courts in the Ninth Circuit, that have held that penalties are not available for failure to provide requested benefit claims documents pursuant to ERISA's claims procedure regulations... [F]ailure to follow the claims procedure rules can have consequences other than penalties, such as a court applying a stricter standard of review when evaluating benefit decisions." [Lee v. ING Groep, N.V., No. 14-15848 (9th Cir. July 25, 2016)]
Thomson Reuters / EBIA

Using 401(h) Assets to Pay Retiree HRA Claims
"This type of arrangement must comply with the requirements for both HRAs and 401(h) accounts. The interaction of these two sets of rules creates a number of technical uncertainties, which were favorably resolved in [PLR 201611003]. Unfortunately, the IRS did not provide a detailed rationale for its conclusion."
Willis Towers Watson

Executive Compensation and Nonqualified Plans

[Guidance Overview]

More on How New Section 409A Rules Impact Nonqualified Deferred Compensation Plans
"The new proposed regulations clarify that in order to correct a possible Section 409A violation by changing the time and form of payment of an amount that is unvested as of the applicable year-end: [1] There must be a reasonable, good faith basis to conclude that an actual Section 409A violation was present ... [2] The correction to change the payment or form of timing is necessary for the arrangement to comply with Section 409A; [3] Consideration should be given to whether, and how, similar Section 409A failures were dealt with in the past, and how similar failures will be avoided in the future; and [4] Procedures under any existing current IRS correction programs (e.g., those set forth in IRS Notice 2010-6) must be followed, if applicable."
Fulcrum Partners, LLC

SEC Cracks Down on Anti-Whistleblower Severance Agreements
"By levying over $600,000 in fines in the span of two weeks, the SEC is sending a strong message to corporate America that severance agreements cannot unduly limit workers from reporting possible whistleblower tips. This surge in enforcement may require you to revise your current template settlement agreements to remove offending language, and might also encourage you to revisit past agreements and make retroactive amends."
Fisher Phillips

Press Releases

DOL Sues Florida Outsource Company, Fiduciaries, Service Providers to Restore $1.5M to Health, Welfare Arrangement
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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