Retirement Plans Newsletter

September 11, 2019

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Deputy Regional Manager for Investigations

Office for Civil Rights, U.S. Department of Health and Human Services
Chicago IL

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Multnomah Group, Inc.
Portland OR / CA / CO / WA / Telecommute

Regional Sales Vice President, Outside Retirement Sales Consultant

RetireWell Administrators, Inc.
Marlton NJ / Telecommute

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Newport Group
Lake Mary FL / Dallas TX

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[Official Guidance]

IRS Announces New Mailing Address for Employee Plans Submissions

"Effective immediately, the mailing address for EP submissions for determination letters, letter rulings and IRA opinion letters is: Internal Revenue Service; 7940 Kentucky Drive, MS 31A; Florence, KY 41042".

Internal Revenue Service [IRS]

[Advert.]

Administer Military Benefits Under Qualified Plans: What You Need To Know

Sponsored by ASC

ASC CE Webcast: The Uniformed Service Employment and Reemployment Act (USERRA) grants benefits to employees who leave the job to perform military service. Learn the USERRA requirements you need to know to administer plans properly. Register Now!


[Guidance Overview]

Multiple Employer Pension Plan Update

"The preamble to the final regulation makes it clear that MEP participating employers would retain limited fiduciary responsibilities. Employers would be required to be prudent in the selection and monitoring of service providers and would also be responsible for the timely remittance of contributions to the plan."

The Wagner Law Group

Fiduciary Lessons from DOL's Win in Employee Stock Case (PDF)

"[C]onsiderations that were key to the court’s holding: [1] Absence of evidence of a thorough and deliberate due diligence; [2] Failure to consider a discounted cash flow analysis, even where the company has not traditionally prepared detailed projections; [3] Failure of the appraiser to be responsive to the trustee’s concerns before closing the transaction; [4] Lack of a robust discussion with the appraiser on the issue of ESOP control for valuation purposes; and [5] Lack of any evidence or record of negotiation of the ESOP purchase price." [Pizzella v. Vinoskey, No. 16-062 (W.D. Va. Aug. 2, 2019)]

Holland & Knight

Court Upholds Multiemployer Pension Plan Administrator's 'Reasonable' Interpretation of Plan Language

"Even though the Ninth Circuit acknowledged that the plaintiff offered an equally reasonable and competing interpretation of the provision at issue, the court ruled the board's broad interpretation was reasonable because it did not clearly conflict with the plan's plain language, did not negate any other plan provision, and was consistent with the plan's purpose." [O'Rourke v. Northern California Electrical Workers Pension Plan, No. 17-17419 (9th Cir. Aug. 16, 2019)]

Hanson Bridgett LLP

Editor's Pick Ninth Circuit Greenlights Individual Arbitration Provisions in ERISA Plan Documents

"Upholding the inclusion of such provisions in the plan document itself rather than in a separate individually-signed contract ... [is a] remarkable ruling. Such provisions had been enforced by other courts on occasion in the past, but an unequivocal statement by an appellate court on the issue will likely have a more far-reaching effect." [Dorman v. The Charles Schwab Corp., No. 18-15281 (9th Cir. Aug. 20, 2019; also unpub. memo. opinion)]

Groom Law Group

[Advert.]

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Sponsored by Wolters Kluwer

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States Sue the SEC to Stop Reg BI

"An underlying aspect of the case is a complicated legal argument that Section 913 of Dodd-Frank required the SEC to act in a certain way (creating a uniform fiduciary standard) as opposed to whether they had discretion to act in the way that they did (not creating a uniform fiduciary standard). Fighting over the rules of rule making was also at the center of the strategy against the DOL Fiduciary Rule. It’s esoteric and complicated but will end up being the key to the final outcome." [State of New York, et al. v. SEC, No. 19-8365 (S.D.N.Y. complaint filed Sep. 9, 2019)]

AskTomClark.com

Seven States and D.C. Aggressively Challenge Reg BI

"[C]hallenges to SEC rulemakings historically have been led by industry groups. That said, based on their public complaints since the proposed releases, some expected certain investor advocacy groups to attempt to take the lead in challenging this rulemaking effort by the SEC. Ultimately, the States have elected to the lead the charge." [State of New York, et al. v. SEC, No. 19-8365 (S.D.N.Y. complaint filed Sep. 9, 2019)]

Drinker Biddle

Best Practices for Plan Sponsors, Part 11

"[ABB, Inc.] settled the case for $55 million, a tidy sum. The plaintiffs' attorneys -- the Schlichter law firm -- received over $18 million of that amount or about a third of the settlement amount. But, as with the other settlements in this series -- and as is typical of the recent settlements with the Schlichter firm -- there were non-monetary conditions in the agreement. Those conditions are the 'lessons' for plan fiduciaries, (e.g., the plan committee members)."

FredReish.com

Meet the MEPs: A Grab Bag of Characteristics

"Though not technically part of the regulations themselves, the [DOL] also addresses a grab bag of questions that came in through the comment process in the preamble.... [1] Fiduciary responsibilities ... [2] Form 5500 ... [3] Fee disclosure under 408(b)(2) ... [4] Termination situations."

DWC

The 'Mega Roth' -- A Tool to Maximize Tax-Free Earnings

"[A] 'Mega Roth' feature [is] an in-plan Roth conversion of after-tax contributions in the year they are made to your defined contribution plan. This strategy converts taxable earnings on after-tax contributions to tax-free earnings and can be a windfall for long-term savers."

Troutman Sanders

Corporate Executives Still Interested in Shedding Pension Liabilities

"U.S. corporate defined benefit plan executives continue to show considerable interest in pension risk transfer transactions ... 44% said they are very interested in PRT transactions ... compared with 42% in the previous survey in 2016, and 35% show they are somewhat interested, compared with 39% in 2016. In the first survey conducted in 2014, only 32% surveyed said they were very interested ... and 10% said they were not interested at all."

Pensions & Investments

Employee Contributions to Public Pension Plans (PDF)

12 pages. "Although investment earnings and employer contributions account for a larger portion of total public pension fund revenues ... by providing a consistent and predictable stream of revenue to public pension funds, contributions from employees fill a vital role in financing pension benefits.  Reforms made in the wake of the 2008-09 market decline included higher employee contribution rates in many states. This issue brief examines employee contribution plan designs, policies and recent trends."

National Association of State Retirement Administrators [NASRA]

Accounting for Federal Retirement and Veterans' Benefits: Cash and Accrual Measures

"This report examines how cash and accrual measures differ for federal retirement and veterans’ benefits and highlights trade-offs between the types of information that those measures provide to policymakers. The report also discusses some ways to expand the use of accrual measures for such benefits."

Congressional Budget Office [CBO]

Editor's Pick The New Blended Retirement System for Military Employees

"[T]here are additional intricacies of the new system that advisors who serve members of the military need to understand, and that the servicemember's join date and years of service will dictate not only which plan will apply to them, but also which benefits they will be eligible for. And while the 2018 deadline to choose retirement systems has passed, the decision must still be made by any Reserve members who are redeployed who have yet to make a choice."

Nerd's Eye View

[Opinion]

The NTSA Released a 403(b) Plan Enhancement Guide

"On the surface the NTSA lays out a few solid ideas (automatic enrollment, match programs and retirement education programs).... The big problems with this publication, however, can be found on page 3. This is where the NTSA cites a previous piece of its own propaganda, a 2018 'study' which somehow concludes that a multi-vendor environment increases the 403(b) participation rate."

403bwise

Benefits in General

NLRB Affirms Right to Unilaterally Implement Changes to Benefit Plans Based on Waiver

"[T]he NLRB found that E.I. DuPont De Nemours did not violate the NLRA by unilaterally implementing changes to its company-wide retiree medical and dental plans based on the unions’ waiver of the right to bargain over such changes." [Du Pont De Nemours and Company, Nos. 05-CA-090984, 09-CA-091793, and 26-CA-092629 (NLRB Sep. 4, 2019)]

Proskauer Rose LLP

Financial Wellness Statistics: Reasons to Adopt a Program

"Here's exactly how these programs help ... [1] ~3% reduction in employee wage garnishing ...[2] 1% lower employee turnover ...[3] 24.6% reduction in absenteeism ...[4] Lower healthcare costs -- $271.50 saved per employee per year ...[5] 13% increase in employees on track to retire on time ...[6] 25.6% increase in HSA and FSA contributions."

ForUsAll

Executive Compensation
and Nonqualified Plans

Employee Stock Purchase Plans: Why They're a Great Deal, What Are Key Features

"In an ESPP that follows the rules under Section 423 of the tax code, the purchase discount can be up to 15% off the market price of the company's stock.... A lookback [provision] takes the purchase-price discount from either the stock price at the start of the offering or the stock price on the purchase date, whichever is lower.... This means that, unlike stock options, an ESPP with a lookback cannot go underwater."

Forbes

Selected Discussions
on the BenefitsLink Message Boards

Don't Have Enough to Contribute Promised Matching Contribution

A sponsor is required to fund a safe harbor match for 2018. They changed their formula from basic to 200% of 5% in 2018, however they only funded the basic amount. They are now saying that they can't afford to fund the SH match for the difference between the basic and the updated formula. What would be the consequences for not funding the full amount which was included in their safe harbor notices?

BenefitsLink Message Boards

ERISA-Covered 403(b) Plan, But Employer Can't Move Investments

A financial advisor has reached out to me about a 403b plan at TIAA. The plan has an employer contribution, and TIAA acknowledges that it is an ERISA plan but they also say that, because all the investments are in annuities, the plan sponsor does not control the investments and hence the plan sponsor can't decide to move the plan in one fell swoop to another platform. Instead it would be up to each participant because each participants control his or her own account. Is TIAA correct?

BenefitsLink Message Boards

In-Service Withdrawals Before 59-1/2

An executive is being encouraged by his advisor to change his company's retirement plan to allow in-service withdrawals before age 59-1/2 so that he can roll his balance into an IRA. Is that allowable? I believe if the plan were amended to allow such a thing, the Code still says a participant would be able to withdraw only the vested company-contributed part of his account, not the pre-tax employee deferrals. Is that right?

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 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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