Retirement Plans Newsletter

March 28, 2019

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Jobs

Pension Administrator
KB Pension Services
in Bradenton FL

Client Success Specialist
Ubiquity Retirement + Savings
in San Francisco CA / AZ / CO / DC / FL / IL / MA / NJ / NV / NY / OR / TX / Telecommute

Client Service Center Associate
Alerus Financial
in Excelsior MN

Retirement Plan Administrator
Growing TPA firm
in IL

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Webcasts, Conferences

Retirement Plan Considerations for 2019
RECORDED
Eversheds Sutherland

Voluntary Fiduciary Correction Program
April 24, 2019 in IL
Employee Benefits Security Administration [EBSA], U.S. Department of Labor

Becoming an S Corporation ESOP
May 14, 2019 WEBCAST
National Center for Employee Ownership [NCEO]

New IRC 83(i) Election for Qualified Equity Grants: Deferral Opportunities for Stock Options and RSUs
May 16, 2019 WEBCAST
Strafford

Voluntary Fiduciary Correction Program
May 16, 2019 in KY
Employee Benefits Security Administration [EBSA], U.S. Department of Labor

►See 166 Upcoming Webcasts and Conferences

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Discussions

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Tenth Circuit Opinion: Great-West Was Not Acting as a Fiduciary When Setting Interest Rate Paid by Key Guaranteed Portfolio Fund (PDF)

60 pages. "[B]ecause Great-West does not have unilateral authority or control over the Credited Rate, it also lacks such control over its compensation. We therefore affirm the district court's summary judgment ruling that Great-West is not a functional fiduciary.... We are not aware of any case finding fiduciary status under Section 3(21)(A) of ERISA based on a service provider's unexercised contractual option to restrict or penalize withdrawal. But even if a potential restriction or penalty could make Great-West a fiduciary, it cannot do so in this case." [Teets v. Great-West Life & Annuity Ins. Co., No. 18-1019 (10th Cir. Mar. 27, 2019)]
U.S. Court of Appeals for the Tenth Circuit

[Advert.]

2019 SPARK National Conference -- June 4-5, Falls Church, VA

Sponsored by SPARK

The retirement services industry's leading event for top marketing, sales, administration and record keeping professionals. Comprehensive agenda is designed to meet the needs of 401(k) Plan Providers, Financial Advisors and Record Keepers.


Ninth Circuit Affirms Dismissal of Disney Prudence Complaint, Applies Dudenhoeffer Standard

"This case is interesting for (at least) three reasons: [1] It's a DC prudence case that is not about fees or company stock; it's about the fundamental prudence of a specific investment (fund menu choice). [2] The court disposed of the case by applying the Supreme Court's market price = prudence rule in Fifth Third Bancorp et al. v. Dudenhoeffer (a company stock case). [3] It raises the issue of whether 'style drift' can be grounds for a prudence claim." [Wilson v. Fidelity Mgmt. Trust Co., No. 17-55726 (9th Cir. Mar. 1, 2019, unpub.)]
October Three Consulting

Delphi Salaried Retirees Lose Pension Case

"A nearly 10-year pursuit by a group of Delphi salaried retirees to regain their full pensions is over -- or at least it could be, if a ruling by a federal judge in Michigan isn't appealed.... Judge Arthur J. Tarnow sided with the [PBGC] to dismiss the civil case filed in 2009 by the retirees group in an attempt to regain large portions of retiree pensions lost after Delphi declared bankruptcy, and the PBGC took over the pensions." [Black v. PBGC, No. 09-13616 (E.D. Mich. Mar. 22, 2019)]
Tribune Chronicle

Make Sure Your Retirement Plan's Investment Policy Statement Isn't a Fiduciary Landmine

"[1] Develop an IPS customized to your plan. [2] Make sure your investment reporting aligns with the criteria in your IPS and establish a watchlist process. [3] Consider hiring an ERISA 3(21) adviser to assist your committee with investment decisions or delegate this responsibility to an ERISA 3(38) 'Investment Manager.' [4] Document investment decisions and why they were made in meeting minutes or another format."
HR Daily Advisor

What 401(k) Recordkeeper Consolidation Means to Retirement Plan Advisers

"The cost to maintain a giant record-keeping system is growing, driven in part by cybersecurity concerns, old technology that's in constant need of repair, and the demand for new features and clean data.... Asset managers' funding is shrinking, with some making big bets on just a few providers, leaving less for the rest. It's entirely possibly that in three to five years, there could be as few as five to seven major platforms that dwarf the rest of the market[.]"
InvestmentNews

[Advert.]

Fiduciary Protection for Default Investments in 401(k) and Other Retirement Plans

Sponsored by Lorman and BenefitsLink

Apr. 30 webinar. Review basic fiduciary standards and duties, and how ERISA Section 404(c) may relieve fiduciaries of these duties for a participant's directed investment. BenefitsLink discount.


Many Retirement Plan Providers Enhanced Their Websites in 2018

"Throughout 2018, [retirement plan providers] improved site features and unveiled new capabilities and resources. Three prominent trends embody most of the changes that recordkeepers made to sponsor sites: the modernization of user interfaces, an increased focus on mobile capabilities and the continued development of plan health resources. In addition, multiple firms enhanced educational suites and security practices."
Corporate Insight

Paying the Plan Expenses of an ESOP: Best Practices

"Special consideration should be made if you allocate expenses pro rata to the [other investment account (OIA)] and you are segregating former employees out of company stock and into OIA assets. If segregated participant balances are part of a pooled investment within the plan, then most of the expenses will be paid by the terminated participants. In this scenario, it could be considered a detriment to the terminated participants and a best practice would be to have the expenses allocated on total account balance."
Blue Ridge ESOP Associates

Puerto Rico Tax Reform Act Includes Retirement Provisions (PDF)

"On December 10, 2018, the Governor of Puerto Rico signed into law Act No. 257-2018 ... A new tax withholding rate of 20% applies to lump sum distributions ... A modified definition of Highly Compensated Employee (HCE) includes an annual HCE compensation threshold that aligns with the limit under the US Internal Revenue Code ... The Act incorporates certain disaster relief provisions contained in prior hurricane-related guidance[.]"
Prudential

Social Security: Major Decisions in the House and Senate Since 1935

98 pages. "The Social Security program, enacted in 1935, has been amended numerous times. Lists and summaries of individual major Social Security amendments may illuminate the tone and context of the debate of the program in the House and Senate. Major statutory decisions made by Congress on the Social Security program, vote information, summaries of major legislative actions, descriptions of floor amendments and congressional debate may be informative to current discussions of the Social Security program." [CRS Report RL30920, updated Mar. 28, 2019]
Congressional Research Service [CRS]

How to Find Your Benefit from a Former Employer's Retirement Plan

"[1] [EBSA] provides help over the phone and online ... [2] The PBGC said there are more than 80,000 people who earned a pension who haven't yet claimed it.... [3] In some cases, the money is handed over to a state's unclaimed property division.... [4] The SSA will provide a notice alerting you to potential benefits when you are ready to claim Social Security, but the notice does not guarantee those funds are still there.... [5] The U.S. Administration on Aging's Pension Counseling and Information Program provides free legal assistance to those experiencing a problem with their pension, profit sharing or retirement savings plans."
San Antonio Express-News

Investing for Income in Retirement

"[1] Set aside 12 months' worth of expenses, after accounting for other non-portfolio income sources, in a liquid cash account ... [2] Keep an additional two to four years' worth of expenses in short-term bonds or bond funds in case of a market downturn.... [3] [C]onsider investing the remainder of your portfolio in assets that have greater potential for investment income and growth ... [4] [A] total return approach allows you to harvest some of your portfolio's gains -- including price appreciation -- for income as needed."
Charles Schwab

Benefits in General

Editor's Pick Arbitration: What's Different About ERISA? (PDF)

27 presentation slides, from ABA Employee Benefits Committee 2019 Midwinter Meeting. Topics: [1] How did we get here? [2] Types of benefit claims that can be arbitrated. [3] Where are we now? [4] Considerations for fiduciaries and plan sponsors. [5] Hypotheticals.
Joint Committee on Employee Benefits [JCEB], American Bar Association

Editor's Pick Will the States Step Into the Benefits Void? (PDF)

26 presentation slides, from ABA EBC 2019 Midwinter Meeting. Topics: [1] State-Sponsored Retirement Plans; [2] City Auto-IRA Programs; [3] ERISA Advisory Committee v. Read (D. Or.); [4] California Secure Choice Retirement Savings Trust Act; [5] HJTA litigation against CalSavers; [6] Regulation of Pharmacy Benefit Manager Practices; [7] Nevada State Law 'Fiduciary Rule'; [7] Does ERISA Preempt Nevada 'Fiduciary Rule'; [8] State Paid Leave Laws.
Joint Committee on Employee Benefits [JCEB], American Bar Association

Executive Compensation
and Nonqualified Plans

[Guidance Overview]

Who Should the Company's Hedging Policy Cover Under the SEC's New Disclosure Rules?

"Neither the statute nor the SEC's rules are limited to named executive officers.... Some companies will establish (and publicize to employees) policies that broadly prohibit all employees from engaging in hedging transactions, at least with respect to stock received as compensatory awards, under the theory that the prohibition alone will deter most from hedging, even though the company may not be able to monitor compliance effectively.... [The authors] suggest that a company make this decision by first asking: For which individuals in our organization can we realistically monitor compliance?"
Winston & Strawn LLP

Signs Your Not-for-Profit Needs an Executive Compensation Study

"[T]he Tax Cuts and Jobs Act (TCJA) levies an excise tax on not-for-profit organizations for compensation paid above a certain level to any executive. Excise taxes on compensation have traditionally been directed only at for-profit companies, so the consideration of excise tax may be new to your organization. It also makes now as good a time as any to consider whether your organization could benefit from an executive compensation study."
CBIZ

Selected Discussions
on the BenefitsLink Message Boards

Bring Your Plan to Us: Bank Pitches Preferred Commercial Lending Rate to Employer

Suppose a bank or financial institution offers to provide preferred commercial lending rates to a retirement plan sponsor if that sponsor moves their 401(k) plan assets to the financial institution. Can anyone point me to any white papers or articles discussing this topic?
BenefitsLink Message Boards

How to Prove a Participant Was Paid Out Long Ago?

A client called a few days ago asking whether we keep records back into the 1990s and of course, we don't. He had a phone call from a former employee who received one of those infamous letters from the Social Security Administration saying that he "might" be due a benefit from my client's retirement plan. How are other firms handling these inquiries?
BenefitsLink Message Boards

Consulting Agreement Subject to 409A?

Consulting Agreement provides for a fee of $250,000 payable quarterly in arrears. Agreement terminates upon a liquidity event or an event of default under certain senior subordinated debt agreement. If an event of default exists with respect to that certain subordinated debt, fee payable under the agreement is limited to $125,000. Deferred amounts continue to accrue during the default period, and once default cured, the accrued amounts are paid to consultant, and thereafter normal schedule of payments resumes. Subject to 409A?
BenefitsLink Message Boards

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Press Releases

PSCA 2019 Signature Award Finalists Announced
PSCA [Plan Sponsor Council of America]

Most Popular Items in the Previous Issue

2018 Q&As: PBGC Meeting with ABA Joint Committee on Employee Benefits (PDF)
Joint Committee on Employee Benefits [JCEB], American Bar Association

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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 2019 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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