Retirement Plans Newsletter

September 14, 2018

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Retirement Plan Administrator
Estate & Pension Advisory Board
in NJ

Defined Contribution Account Manager
Nova 401(k) Associates
Telecommute

Retirement Implementation Specialist
Alerus Financial
in MN, ND

Plan Manager, Retirement Services
OneAmerica
in IN

403(b)/457 Account Manager
Nova 401(k) Associates
Telecommute

Client Happiness Manager / Upcoming Advisor
Retirement Planology, Inc.
in

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NYU Wins ERISA Challenge: Thoughts for Plan Fiduciaries

"The opinion highlights the fact-based nature of a retirement committee's decision-making process, with the court recognizing that plan-related decisions are unique to the institution and body of participants, and should come after reasoned consideration of all the circumstances, not price alone.... The opinion also emphasizes that fiduciaries cannot defer entirely to or rely passively on the Committee's investment consultant's expertise." [Sacerdote v. New York Univ., No. 16-6284 (S.D.N.Y. July 31, 2018)]
Drinker Biddle

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Fiduciary Best Practices Helped NYU Win ERISA Class Action (PDF)

"Citing to the minutes kept by the committee as evidence, the court found: [1] That the committee had met with the adviser on a regular basis; [2] That the investment firm had prepared detailed reports that included the fund's performance against its peers', investment objectives and risk, and expenses, manager tenure, category ranking, risk, risk adjusted return, net expense ratio, style drift, turnover ratio, and Morningstar rating; and [3] That key members of the committee were fully engaged with the adviser in reviewing the adviser's reports." [Sacerdote v. New York Univ., No. 16-6284 (S.D.N.Y. July 31, 2018)]
Barclay Damon LLP

Plan Fiduciaries Should Be Aware of Public and Private Social Media Activities

"[S]ending a quick message to another person through an online message may be treated like casual conversation. Especially when the messages are expected to be kept private. However, these messages can still be treated like emails in litigation discovery. So regardless of whether you are a plaintiff or defendant in an ERISA action, always think twice about what you commit to writing in otherwise casual conversation." [Bell v. Pension Committee of ATH Holding Co., No. 15-2062 (S.D. Ind. June 14, 2018)]
Butterfield Schechter LLP

Frontier Communications 401(k) Plan Participant Sues Over Verizon Stock Fund

"The lawsuit ... alleges the plan has lost $100 million since adding Verizon company stock as an investment option in its 401(k) plan."
Pensions & Investments

The New Principal-Purpose Organization Question in Church Plan Litigation: Does the Committee 'Maintain' the Plan?

"[T]his decision is not a final determination on the merits but is, instead, a very carefully reasoned opinion on Dignity Health's motion to dismiss on the grounds that the plan in question is a church plan; the opinion goes to great lengths to emphasize that it may reach a different conclusion at the summary judgment stage. Nevertheless, the trial court's ruling does give credence to the plaintiffs' assertion that the Dignity Health plan was not 'maintained' by a principal-purpose organization described in ERISA Section 3(33)(C)(i)." [Rollins v. Dignity Health, No. 13-1450 (N.D. Cal. Sept. 6, 2018)]
Bradley

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Taft-Hartley Pension Plans: The Long and Difficult Road Traveled

"Between 2008 and 2009, the number of active employed participants in the median pension plan in the construction industry plummeted 13%, with further declines over the next several years. As a result, the average funding status for most plans is yet to return to 2007 levels, ... even as most investment portfolios and financial markets have staged a strong comeback since the recession."
NEPC

Tax Reform 2.0 Adds to Momentum for Open MEPs

"The Family Savings Act of 2018, one of the three bills, eases rules around open multiple-employer plans, or open MEPs. These rules would allow more employers to band together and offer a common retirement plan to employees, thereby reducing cost and administrative duties."
InvestmentNews

Benefits in General

Stock Compensation Can Add Zing to Your Benefits Package

"Aside from the traditional retirement plan and medical benefit offerings, some employers may find value in offering creative stock bonus and compensation programs like stock options, restricted stock, and other equity-type arrangements.... This article addresses three sources of federal law that must be kept in mind when designing and implementing a stock compensation program -- the Internal Revenue Code, ERISA, and securities laws."
Holland & Hart LLP

Executive Compensation
and Nonqualified Plans

[Guidance Overview]

Initial IRS Section 162(m) Guidance Makes Company Decisions Possible

"[In] many cases, the guidance offers sufficient details to help companies decide what is and is not tax-deductible in future years for current covered employees. A review of the precise details underlying compensation grants will be required, including a close reading of plan documents and grant agreements."
Willis Towers Watson

Common Benefit Pitfalls for Closely-Held Businesses, Part 4: Perks

"[M]ost closely-held and family-owned businesses maintain a litany of perks adopted to enhance the package made available to those 'key' groups. We commonly think of club memberships, company cars and private jet excursions, to name a few.... [T]hese perks don't come without the need for careful vetting of certain tax and compliance considerations:"
Michael Best

Growth in CEO Pay Since 1990 (PDF)

"For the period 1990 through 2016 median CEO pay grew by over 400 percent. If annualized CEO pay growth thus far in the current decade continues for the rest of the decade, the end-of-decade median CEO pay level will have increased by more than 500 percent over the median CEO pay in 1990."
McCarter & English

Selected Discussions
on the BenefitsLink Message Boards

Successor Plan when Previous Plan is Top Heavy

A plan terminates in 2016 and funds were distributed. Company opens new plan for 2018. Are those plan distributions added back in as in-service withdrawals for 5 years?
BenefitsLink Message Boards

Subtract Medical Insurance When Determining Maximum Deduction for Self-Employed Participant?

CPA is telling me that a maximum deduction is: Schedule C: 1/2 SE minus Medical Ins. = Max Deduction; so $51,320 minus $3,626 minus $14,400 = $33,294 but I would instead think it's $33,539. I have never heard of a Medical Insurance offset limiting the contribution.
BenefitsLink Message Boards

Beginning-of-Year Participant Count with Excluded Employees

New plan to be effective 1/1/2018. Participant count will apparently be 101, so audit would be required. What if the 2 owners are excluded? Are excluded employees who have otherwise satisfied eligibility considered "participants" for BOY count purposes?
BenefitsLink Message Boards

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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 2018 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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