Retirement Plans Newsletter

July 15, 2019

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Employee Benefits and Executive Compensation Associate
Nelson Mullins Riley & Scarborough
in Atlanta GA / Charlotte NC / Columbia SC

Employee Benefits Associate
Willcox & Savage, P.C.
in Norfolk VA

Compliance Administrator III
Associated Pension Consultants
in Chico CA / Telecommute

Retirement Plan Administrator
Davis Moore & Associates, Inc.
in Bellevue WA

Actuary -DH
Pension Benefit Guaranty Corporation
in Washington DC / Telecommute

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[Official Guidance]

Text of EBSA Proposed PTE for Credit Suisse Group AG and Its Current and Future Affiliates

"The Department is proposing this exemption to protect plans and IRAs that use Credit Suisse Affiliated QPAMs, from the costs and expenses that may arise if those asset managers are no longer able to rely on the relief provided by PTE 84-14. This proposed five-year exemption, if granted, provides relief from certain of the restrictions set forth in sections 406 and 407 of ERISA. No relief or waiver of a violation of any other law is provided by the exemption."
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

[Guidance Overview]

Editor's Pick Implementation Considerations: Reg BI (PDF)

"Firms that will continue to provide broker-dealer services to customers who are not retail customers ... might want to ensure that their systems are able to identify accounts that would not be considered retail customer accounts subject to Reg. BI. Firms will also want to keep in mind that they will need to preserve their existing compliance and operational structure for customer accounts that are not covered by Reg. BI."
Eversheds Sutherland

Proposed Treasury Regs on MEPs Are a Good Start

"Under the existing rules, one noncompliant employer within a MEP can disqualify the entire plan, creating significant problems for the other participating employers. If these proposed regulations become final, they will remove an important compliance hurdle for employers considering -- or already in -- a MEP."
Ascensus

Top Areas of Focus in IRS Investigations of Retirement Plans

"Audits are never pleasant, but to minimize the pain, a plan sponsor may consider a compliance self-review to ensure that the plan is operating correctly, its plan documents comport with plan operation, and plan records are complete and organized before the IRS comes knocking."
Morgan Lewis

Vendor Process Reviews Are Crucial to Retirement Plan Cybersecurity

"[G]enuine cybersecurity comes from a thoughtful and diligently applied combination of technical security protocols and internal processes built around multi-factor authentication, complemented by an overall organizational approach that also addresses the inevitability of human error.... [M]any retirement plan fiduciaries do a lackluster job monitoring the cybersecurity performance of the vendors they work with on a daily basis."
PLANSPONSOR; free registration may be required

The New ERISA Litigation Target: Defined Benefit Plans

"[1] A number of cases have been filed against large sponsors of defined benefit plans ... claiming that the actuarial factors ... used to determine annuity benefits were outdated, so that participants were underpaid.... [2] Participants have also challenged a transfer of sponsorship of the Dow Pension Plan to a new entity ... claiming that the plan's financial condition was jeopardized by the transfer.... [3] The Supreme Court will be reviewing ... an appeal from an 8th Circuit decision that found that a participant couldn't sue for a fiduciary breach relating to investments if the plan was overfunded."
Cohen & Buckmann, P.C.

Fourth Circuit: Employer Does Not Owe Withdrawal Liability, But May Still Owe an 'Exit Fee'

"The take-away of this case for employers participating in multiemployer pension funds is that in many cases, the employer will be bound by the terms of its CBA, and by the terms of the pension fund's trust documents, and fund policies and procedures, including amendments to those documents adopted while the employer is participating in the fund. The broad nature of many fund documents arguably gives considerable power to pension funds to impose onerous terms on participating employers mid-CBA." [Sheet Metal Workers' National Pension Fund v. Four-C-Aire, Inc., No. 17-2295 (4th Cir. July 3, 2019)]
Dickinson Wright

Adidas 401(k) Lawsuit Argues Passive Funds Best for Participants

"[The complaint] argues that the funds chosen by Adidas from which plan participants may elect to invest are actively managed, which in significant measure results in the higher administrative fees. The plaintiffs suggest Adidas could have offered passively managed funds as an alternative to plan participants, which would have resulted in significantly lower administrative fees yet generated comparable returns." [Enos v. Adidas America Inc., No. 19-1073 (D. Ore. complaint filed Jul. 10, 2019)]
planadviser

Plan Sponsors Should Have a Model QDRO

"[A] model QDRO can and should be drafted to reflect the terms of the plans that the employer maintains. This will help avoid the time consuming, costly, and sometimes frustrating process of modifying an order to make sure that it does not require a form of distribution (or confer other rights) not allowed under the plan document."
Verrill Dana, LLP

Women in Two-Income Households and Retirement Risk

"Despite the fact that they have two incomes, 46% of women in two-income households are at risk of being unable to maintain their standard of living in retirement, vs. 32% of married women in one-income households and 39% of all single women[.]"
Prudential

Benefits in General

SHRM's 2019 Survey Reveals Most Popular Employee Benefits

"[No] more than 3% of organizations reported benefits decreases in any category. The biggest increases (20%) to benefits were in the health and wellness benefits categories.... A majority of surveyed organizations (70%) reported that they maintained their health care benefits at existing levels this year.... Almost all the surveyed employers said they offer some kind of retirement plan, with 93% offering traditional 401(k) plans.... Many employers also reported offering services designed to help employees with financial decisions,"
Xpert HR

Selected Discussions
on the BenefitsLink Message Boards

Noncompliance with 'Thou Shall Not Sin' Provision Causes Plan Disqualification?

The 401(k) plan's governing document includes this: "The Trustee shall not engage in any prohibited transaction within the meaning of the Code and ERISA." Does something that might not have tax-disqualified a plan have that effect for the reason that the plan's fiduciaries failed to administer the plan according to its governing document?
BenefitsLink Message Boards

Include Names and Addresses on Pre-filled Distribution Forms?

We have the ability to pre-fill Fund Company distribution forms with names and addresses before sending to terminated participants using an in-house software program. We would NOT enter DOB's or SS#'s. Just names and addresses. What are others doing? We had been including names/addresses at one point in time but decided to stop because we felt like once that information was on the form, it was that much closer to being susceptible to theft.
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Press Releases

National Alliance of Healthcare Purchaser Coalitions Elects New Board Officers
National Alliance of Healthcare Purchaser Coalitions

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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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