Retirement Plans Newsletter

March 9, 2017

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Employee Benefits Jobs

Retirement Plan Administrator
Warren Averett, LLC.
in AL, FL

Director - Account Executive
Aspire Financial Services LLC
in FL

Retirement Specialist
Prestige Employee Administrators
in NY

Conversion Consultant
Aspire Financial Services LLC
in FL

Retirement Plan Administrator
Florida Retirement Consultants
in FL

401k Service Administrator
Retirement Direct
in NC

ERISA Specialist
Newport Group
in FL, MN

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Webcasts and Conferences

Social Security: Benefits, Deficits and Beyond
March 16, 2017 in CA
Western Pension & Benefits Council - Orange County Chapter

403(b) Plans in 2017: Significant Issues and Trends
March 23, 2017 in CA
Western Pension & Benefits Council - Orange County Chapter

Emerging Trends in Consumer Driven Health Care
March 30, 2017 WEBCAST
ConnectYourCare and Devenir

Financial Services Conflicts of Interest & Fiduciary Duties 2017: Navigating the Emerging Regulatory Maze
April 26, 2017 WEBCAST
Practising Law Institute

New Trustees Institute--Level I: Core Concepts
June 26, 2017 in CA
International Foundation of Employee Benefit Plans [IFEBP]

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[Official Guidance]

Text of IRS Memo: Substantiation Guidelines for Safe-Harbor Hardship Distributions from Section 403(b) Plans (PDF)
"This memorandum sets forth substantiation guidelines for EP Examinations employees examining whether a section 403(b) plan safe-harbor hardship distribution is 'deemed to be on account of an immediate and heavy financial need' pursuant to Section 1.401(k)-1(d)(3)(iii)(B) of the Income Tax Regulations.... [The Feb. 23, 2017] 401(k) Memorandum and Attachment are also applicable to hardship distributions from section 403(b) plans[.]"
Internal Revenue Service [IRS]

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[Guidance Overview]

Recent IRS Guidance for Hardship Distributions
"The Guidelines indicate that if the employer or administrator received a summary of source documents ... the IRS examining agent should inquire whether the employer or TPA had provided a specified notification to the participant prior to making the hardship distribution. Three of the four items on that notice are tax-related items ... The fourth item requires the participant's agreement to preserve source documents and make them available on request to the employer or administrator, without specifying the consequences of the participant's failure to comply with his or her agreement."
The Wagner Law Group

[Guidance Overview]

BICE on Ice? Status of the DOL Fiduciary Rule (PDF)
"With recent developments in all three branches of government bearing on the authority and timing of the new [DOL] final rule expanding the definition of fiduciary 'investment advice' for purposes of [ERISA], the already formidable challenges for plan sponsors and retirement product and service providers have been made more difficult.... While DOL almost certainly had authority to adopt a 60-day delay without notice and comment rulemaking under the 'good cause' provisions of the Administrative Procedure Act, the process it has chosen ensures that all stakeholders will have an opportunity to be heard at each stage of its examination of the Final Rule."
Eversheds Sutherland

[Guidance Overview]

DOL Publishes Proposed Delay in Conflict of Interest Rule Applicability Date
"If the delay in applicability were not implemented, and the rule were ultimately rescinded, 'affected advisers, retirement investors and other stakeholders might face two major changes in the regulatory environment rather than one.' Thus, it is hard to see a justification for not delaying for some period. And it's clear -- with only 15 days to comment -- that DOL expects to adopt the extension relatively quickly.... A critical issue will be the extent to which the industry has already adapted to the new rule ... The delay (or, more significantly, the ultimate decision on review) may affect only part of the new rule[.]"
October Three Consulting

Qualified Retirement Plans in 2017 and Beyond: Resources and Considerations for Employers
"The Required Amendments List is not exhaustive ... Operational compliance may be required prior to plan amendment ... Reliance on existing determination letters is limited."
Caplin & Drysdale

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Removing the Legal Impediments to Offering Lifetime Annuities in Individual Account Plans (PDF)
112 pages. "This Article considers how changes in the laws and regulations governing pensions and annuities could help promote secure, lifetime income streams [from 401(k) and other defined contribution plans, called 'individual account plans' in ERISA]. More specifically, this Article explores how the laws governing annuities could be changed to make voluntary annuitization more attractive and how pension laws could be changed to incentivize plan sponsors to offer more lifetime income options and to encourage plan participants to select those options."
Prof. Jonathan Barry Forman, Univ. of Oklahoma College of Law, Via Connecticut Insurance Law Journal

Preparing Participants for the Next Market Downturn
"The best time to communicate to participants about how investment returns and market cycles work and the ongoing importance of proper diversification is not when a year like 2008 happens, but when the market is doing well (i.e., right now!). While a significant number of participants did experience the 2008 market correction and (hopefully) behaved prudently to maintain well-diversified portfolios (for those who did, their equity loss was generally recouped by 2012), there are now a number of early career workers who have never experienced a significant market downturn."
Cammack Retirement Group

Fiduciary Fee Reasonableness
"There is no shortage of legal activity surrounding fee reasonableness. Fiduciaries can draw a variety of lessons from the alleged breaches, complaints filed, settlements, and court decisions. [This article provides] an overview of the most frequently litigated issues relating to fees, and the corresponding lessons that fiduciaries should learn."
Manning & Napier

401(k) Plan Fees Continue to Crater
"The average total plan cost for a small retirement plan (defined as 100 participants and $5 million in assets) declined from 1.28 percent to 1.25 percent over the past year, while the average total plan cost for a large retirement plan (defined as 1,000 participants and $50 million in assets) declined from 0.97 percent to 0.96 percent.... Reflecting economies of scale, the average cost for a micro plan (10 participants and $500,000 in assets) is 1.85 percent ... [T]he range between the high and low total plan costs on a small plan is .46 percent to 1.69 percent, while a large plan is 0.28 percent to 1.21 percent."
401K Specialist

[Advert.]

Online Learning Course: 401(k) Plan Administration

Sponsored by International Foundation of Employee Benefit Plans [IFEBP]

Learn more about plan design issues, plan investments, fiduciary responsibility and plan fees, employee communications and investment education, automatic enrollment, participant loans, distributions, and plan amendment and termination.


Schwab Employee 401(k) Lawsuit Uses Vanguard as Exhibit 'A'
"Schwab is just the latest in a line of quality firms being sued by their own employees ... for serving up allegedly subpar home cooking when it comes to pension care.... [S]imilar firms sued under similar circumstances tend to have to settle for big amounts.... What's certain is that this type of suit is especially toxic for a firm whose value proposition is tied so closely to trust."
RIABiz

TIAA Dodges Retirement Fee Lawsuit by University Workers
"Castel's decision puts an end to a proposed class action alleging that TIAA misused its dual position as record keeper and seller of group annuity contracts to take excessive compensation from retirement plan assets. Castel said TIAA's practice of refusing to share certain fees as a record-keeping offset with third-party providers wasn't an exercise of discretion that would make TIAA a fiduciary." [Malone v. Teachers Ins. & Annuity Ass'n of Am. (TIAA), No. 15-8038 (S.D.N.Y. Mar. 7, 2017)]
Bloomberg BNA

Insperity Must Face Lawsuit Over 401(k) Fees, Funds
"The eight-count lawsuit attacks the management of Insperity's $2 billion 401(k) plan, which participants claim offered expensive and poorly performing investment options and paid excessive fees to a record keeper affiliated with the company. A federal judge on March 7 refused to dismiss most of the claims against Insperity and Reliance Trust Co., including the accusation that Insperity filled the 401(k) plan with untested target-date funds that earned fees for the company."
Bloomberg BNA

In Puerto Rico, Teachers' Pension Fund Works Like a Ponzi Scheme
"In Puerto Rico ... the pension funds are so short of cash that money contributed by working teachers basically flows straight out to retirees. None of Puerto Rico's current teachers can expect to get their money back, because the fund is due to run out of money in 2018, long before they retire.... [T]his structure is legal in Puerto Rico because of a complicated series of changes in the law brought about in recent years by the island's financial crisis."
The New York Times; subscription may be required

Benefits in General

Does the Fiduciary Exception Apply to Legal Advice Received By Insurers During the Claims Process?
"Adding to the body of conflicting authority on the scope of the attorney-client privilege in ERISA lawsuits, a district court has found that the fiduciary exception to attorney-client privilege applies to an insurance company that acts as a claim administrator, thus requiring disclosure of communications between the insurer and its lawyers regarding a claim for benefits during the claims process." [McFarlane v. First Unum Life Ins. Co., No. 16-7806 (S.D.N.Y. Feb. 6, 2017)]
Seyfarth Shaw LLP

Attract and Retain: How to Become an Employer of Choice with Benefits
"[B]enefits that address an employee's lifestyle are what give an employer the edge. These lifestyle benefits range from flexible work arrangements, telemedicine, parental leave and adoption benefits, or even some that are less commonly known, such as 'paw-ternity leave' for employees that need time to bond with their new fur babies. To be considered an employer of choice, getting the basics right is a must, and connecting your employees to benefits that address their work/life balance is a necessity."
Benefitfocus

Press Releases

PBGC, Sears Reach Agreement to Further Protect Pension Plans
PBGC [Pension Benefit Guaranty Corporation]

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Lois Baker, J.D., President  loisbaker@benefitslink.com
David Rhett Baker, J.D., Editor and Publisher  davebaker@benefitslink.com
Holly Horton, Business Manager  hollyhorton@benefitslink.com

BenefitsLink Retirement Plans Newsletter, ISSN no. 1536-9587. Copyright 2017 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 those materials. You may not alter or remove any trademark, copyright or other notices from copies of the content.

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