Retirement Plans Newsletter

December 3, 2019

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[Guidance Overview]

DOL Proposes New Safe Harbor for Electronic Disclosure Under ERISA

"The safe harbor would apply to participants, beneficiaries, or other individuals entitled to covered documents (including appropriate designees) who have an employer-provided email address or who otherwise provide an employer, plan sponsor, or plan administrator with an electronic address, such as an email address or smartphone number."

Fisher Phillips

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Editor's Pick Retirement Plan Cybersecurity: Don't Assume Outsourced Administration Is Duty-Free

"[F]iduciaries could consider utilizing the standard addendum or attachment for data security/processing that the plan sponsor uses for its vendor arrangements. Introducing this addendum or attachment at the request for proposal (RFP) stage would help [1] ensure that service providers are chosen based on more than just price and [2] avoid difficult negotiations later in the contracting process.... [P]lan fiduciaries that already have recordkeeping and other outsourcing agreements in place may consider reviewing and, as practical, renegotiating those agreements to update or add data security requirements."

Morgan Lewis

Ways to Improve Your Company's 401(k) Plan in 2020

"If you haven't reviewed your provider fees within the last three years ... make sure you do so in 2020.... Providers and consultants are constantly adding features to better serve their clients.... Your adviser should be leading an evaluation of your fund lineup every year.... Make sure that the investment adviser you work with has signed on to your plan as a fiduciary.... Work with providers that are right for your culture."

Lawton Retirement Plan Consultants

Side-by-Side Comparison of Proposed Multiemployer Pension Legislation (PDF)

"The Rehabilitation for Multiemployer Pensions Act (known as the Butch Lewis Act) was passed by the House on July 24, 2019 and introduced to the Senate. On November 20, Senators Charles E. Grassley (R-IA) and Lamar Alexander (R-TN) released a proposal called the Multiemployer Pension Recapitalization and Reform Plan (Reform Plan). The two bills are quite different and [this chart] offers comparisons of certain key components that will most interest plan sponsors[.]"

Cowden Associates, Inc.

MARP Withdrawal Liability Rules: Here's What Would Change

"The Technical Explanation of the Multiemployer Pension Recapitalization and Reform Plan (MARP) proposes changing the calculation of withdrawal liability ... [H]ere is what would change. [1] Determination of withdrawal-liability payment ... [2] Underfunding measurement ... [3] Withdrawal-liability payment schedule."

Burypensions

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First Circuit Hands Down Significant Private Equity Ruling in Sun Capital Litigation

"The court's conclusions appear to be based, at least in part, on the clear disincentive a decision imposing liability would create with respect to 'much-needed private investment in underperforming companies with unfunded pension liabilities.' " [Sun Capital Partners III, LP v. New England Teamsters & Trucking Industry Pension Fund, Nos. 16-1376, 19-1002 (1st Cir. Nov. 22, 2019)]

Drinker Biddle

New Sun Capital Ruling: Private Equity Funds Avoid Portfolio Company Pension Liabilities But Caution Still Advised

"[T]his ruling provides some comfort but risks still remain.... Any single fund (including parallel entities) should avoid acquiring 80% or more ownership of the portfolio company to avoid ERISA controlled group liability.... [T]he sponsor should carefully consider how to use related funds and commonly-controlled vehicles to own the balance of the investment, to best support an analysis that no partnership-in-fact has been formed.... Private equity funds should continue to strengthen due diligence efforts regarding pension plans ... Fund disclosure documents should include discussion of the risk of ERISA controlled group liability[.]" [Sun Capital Partners III, LP v. New England Teamsters & Trucking Industry Pension Fund, Nos. 16-1376, 19-1002 (1st Cir. Nov. 22, 2019)]

Paul, Weiss, Rifkind, Wharton & Garrison LLP

Retirement Readiness: What Does Full Funding Look Like?

79 pages. "[F]inancial planners often suggest that retiring workers should aim to replace 70 to 80 percent of their annual preretirement earnings. Social Security benefits typically replace around 35 percent of the typical worker's preretirement earnings ... [T]he purpose of this Article is to show how pensions could and should be designed to replace ... 40 percent of the typical worker's preretirement earnings ... [B]ecause so many public and private pension plans are underfunded, this Article is focuses on how to fully fund those pensions."

Jonathan Barry Forman, University of Oklahoma College of Law, forthcoming in Marquette Law Review, via SSRN

November 2019 Pension Finance Update

"Pension finances enjoyed their third consecutive month of improvement in November, mostly due to rising stock markets. Both model plans ... gained ground last month: Plan A improved more than 1% in November but remains down 2% for the year, while Plan B gained less than 1% and is now even through the first eleven months of 2019[.]"

October Three Consulting

What Draws Business Owners to the Idea of an ESOP?

"[T]he most common themes are, in order, the economic well-being of employees, securing a comfortable retirement for the owner, and preserving the legacy and values of the organization.... '[L]egacy/values' is diverse, with respondents talking about everything from community and values to teamwork to an aversion to private equity.... [T]he amount of overlap between the three primary themes is relatively small. People tended to stick with just one of the themes."

National Center for Employee Ownership [NCEO]

Benefits in General

Beware of the 'Overshare': Construe Requests for ERISA Plan Documents Narrowly!

"Administrators of ERISA plans frequently receive requests from participants, beneficiaries, and their representatives for plan-related documents. A recent decision from the Court of Appeals for the Fifth Circuit supports providing only those documents that fall under a narrow reading of ERISA Section 104(b)(4). Over-production could serve to facilitate litigation." [Theriot v. Building Trades United Pension Trust Fund, No. 18-10250 (E.D. La. Nov. 4, 2019)]

Seyfarth

DOL Inspector General Semiannual Report to Congress (PDF)

104 pages. "Legislative changes to [ERISA] and criminal penalties for ERISA violations would enhance the protection of assets in pension plans. To this end, the OIG recommends the following legislative actions: [1] Repeal ERISA's limited-scope audit exemption.... [2] Expand the authority of [EBSA] to correct substandard benefit plan audits and ensure that auditors with poor records do not perform additional plan audits.... [3] Require direct reporting of ERISA violations to DOL.... [4] Strengthen criminal penalties in Title 18 of the U.S. Code."

Office of Inspector General, U.S. Department of Labor [DOL]

MassMutual Workplace Financial Wellness Study (PDF)

16 data-rich presentation slides. "Eight in ten plan sponsors believe their employees are struggling financially, and often in ways that are not addressed by their current benefits offering.... Plan sponsors are aware of such challenges because they hear their employees talking about them, they see lower retirement plan participation than they would like to see, their employees are taking on second jobs, or taking loans from their retirement plans. Nearly six in ten plan sponsors believe their employees are looking to them, their employer, for support."

MassMutual

Executive Compensation
and Nonqualified Plans

Using Profits Interests as Equity Incentive Compensation

"Profits interests offer unique advantages in that they are generally tax-free to grantees upon issuance and receive capital gains treatment upon the later sale or redemption of the interests. However, profits interests can have significant repercussions for both the grantor and the grantee[.]"

Thompson Coburn

Selected Discussions
on the BenefitsLink Message Boards

Non-Corporate Trustee of a Rabbi Trust?

"The model Rabbi Trust from the IRS seems to limit trustees to the following: 'a bank trust department or other party that may be granted corporate trustee powers under state law.' Does this preclude an individual from service as trustee of a Rabbi Trust? I would not think so, but I note they use the terms 'granted CORPORATE trustee powers...' Also, do you agree that an individual cannot serve as the trustee of his own account because to so he would have constructive receipt of the funds?"

BenefitsLink Message Boards

Can Create a 2020 Safe Harbor Plan in Early December Despite Inability to Provide 30 Days' Notice?

"I know about the 30-days rule for providing notices. But what if someone decides in December to start a SH 401(k) plan? Can they not do it? What if it's the first week or two of the month? Wouldn't that be like an 'as soon as administratively feasible' situation?"

BenefitsLink Message Boards

Assets Still in DC Plan at One-Year Termination Anniversary

"What happens if a plan has a termination date of 12/1/2018, but not all the assets have been distributed by 12/1/2019? It's a 401(k) plan."

BenefitsLink Message Boards

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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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