Retirement Plans Newsletter

February 26, 2020

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Finding the Right Processes for Your Retirement Offerings
RECORDED
The Segal Group

Getting It Right - Know Your Fiduciary Responsibilities: Retirement and Health Plan Sponsors - Day 1
March 11, 2020 WEBCAST
Employee Benefits Security Administration [EBSA], U.S. Department of Labor

Executive Compensation Deductions Under Section 162(m): What Has Changed and What to Do Under the Proposed Regulations
March 13, 2020 WEBCAST
American Law Institute Continuing Legal Education Group [ALI CLE]

Retirement Plan Compliance When Investing In Target Date Funds
March 30, 2020 in NY
Archer

Basics of Qualified Retirement Plans: Session 5
April 2, 2020 WEBCAST
ASC

Decision Makers Guide to Equity Compensation
June 9, 2020 WEBCAST
National Center for Employee Ownership [NCEO]

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Editor's Pick Supreme Court Opinion: Statute of Limitations for Fiduciary Breach Is Measured from Date Plaintiff Is 'Actually Aware' of Information (PDF)

14 pages. "A plaintiff does not necessarily have 'actual knowledge' under Section 1113(2) of the information contained in disclosures that he receives but does not read or cannot recall reading. To meet Section 1113(2)'s 'actual knowledge' requirement, the plaintiff must in fact have become aware of that information.... When Congress has included both actual and constructive knowledge in ERISA limitations provisions, Congress has done so explicitly. But Congress has never added to Section 1113(2) the language it has used in those other provisions to encompass both forms of knowledge.... Petitioners' arguments for a broader reading of Section 1113(2) based on text, context, purpose, and statutory history all founder on Congress's choice of the word 'actual.' Petitioners may well be correct that heeding the plain meaning of Section 1113(2) substantially diminishes the protection that it provides for ERISA fiduciaries. But if policy considerations suggest that the current scheme should be altered, Congress must be the one to do it.... This opinion does not foreclose any of the 'usual ways' to prove actual knowledge at any stage in the litigation.... Plaintiffs who recall reading particular disclosures will be bound by oath to say so in their depositions. Actual knowledge can also be proved through 'inference from circumstantial evidence.' And this opinion does not preclude defendants from contending that evidence of 'willful blindness' supports a finding of 'actual knowledge.' " [Intel Corp. Investment Policy Comm. v. Sulyma, No. 18-1116 (S. Ct. Feb. 26, 2020)]

Supreme Court of the United States

Justices Side with Former Intel Worker on 401(k) Suit Deadline

"The Supreme Court said employers can't shorten the window 401(k) participants have to sue over alleged plan mismanagement by simply posting plan information online. In a unanimous ruling, the court said Wednesday that plan participants don't necessarily have 'actual knowledge' of the alleged violation required under the law to shorten the litigation window to three years if they received information about the alleged violation in disclosures but did not read or can't recall reading them." [Intel Corp. Investment Policy Comm. v. Sulyma, No. 18-1116 (S. Ct. Feb. 26, 2020)]

Bloomberg Law

Eighth Circuit Finds Setting Guaranteed Fund Interest Rate Is a Fiduciary Act

"Principal Life Insurance Co. acted as an ERISA fiduciary when setting a guaranteed rate of return for one of its investment funds ... The court found that Principal met both parts of a two-pronged test applied by other courts to determine fiduciary status. The case now heads back to the district court, which will decide whether Principal breached its fiduciary duties when setting the rate." [Rozo v. Principal Life Ins. Co., No. 18-3310 (8th Cir. Feb. 3, 2020)]

Mercer

Best Interest Standard of Care for Advisors, Part 26

"[T]he SEC explained that, if the broker-dealer is a dual registrant, but the advisor can only represent the brokerage side of the house, that is a 'material limitation' on the advisor's services. The effect of a material limitation is that the broker-dealer (or the advisor) must disclose that the advisor has a material limitation on his or her services and what that material limitation is.... [If] the material limitation is not disclosed by the broker-dealer, the advisor must disclose it. And the disclosure should be in writing."

FredReish.com

How the SECURE Act Affects Retirement and Estate Planning

"[C]lients in lower income tax brackets relative to their beneficiaries might consider Roth conversions. Although Roth accounts are also subject to the new rules, the distributions are income tax-free to those beneficiaries. Clients in lower income tax brackets relative to their beneficiaries might also consider spending down their retirement accounts and bequeathing taxable assets instead.... [A] client who is charitably inclined might make qualified charitable donations from his IRA or leave the assets to a charitable remainder trust."

Schiff Hardin

2020 Defined Benefit Retirement Plan Compliance Calendar

"This 2020 Retirement Plan Compliance Calendar highlights critical compliance deadlines for defined benefit retirement plans. While all major dates are included, some may only apply to particular plans and there may be additional deadlines for specific plans that are not covered here. Plans with non-calendar plan years may be subject to different deadlines."

Cammack Retirement Group

Multiemployer Pension Funded Status Bounces Back in 2019

"The aggregate funded percentage for all multiemployer plans is estimated to be 85% as of December 31, 2019, up from 74% at the end of 2018.... [T]here are now a higher percentage of plans above 100% funded and below 50% funded compared to 12 years ago.... The aggregate funded percentage of the 130 critical and declining plans at the end of 2019 was 37%. That is half of what it was for the same plans at the end of 2007 (74%)."

Milliman

Public Pension Plan Investment Return Assumptions (PDF)

"[A]lthough the average nominal public pension fund investment return has been declining, because the average rate of assumed inflation has been dropping more quickly, the average real rate of return has risen, from 4.21 percent in FY 02 to 4.54 percent in FY 18.... Among the 130 plans measured, 91, or 70 percent, have reduced their assumed rate of return since fiscal year 2017, and all but seven plans (95 percent) have done so since fiscal year 2010. These reductions have resulted in a decline in the average return assumption from 7.52 percent in FY 17 to 7.22 percent in FY 20."

National Association of State Retirement Administrators [NASRA]

Editor's Pick How Do Private Equity Fees Vary Across Public Pensions?

"[The authors] document large variation in net-of-fee performance across public pension funds investing in the same private equity fund. In aggregate, these differences imply that the pensions in [this] sample would have earned $45 billion more -- equivalent to $8.50 more per $100 invested -- had they each received the best observed terms in their respective funds.... With better terms, the 95th percentile pension would have earned $14.91 more per $100 invested compared to $1.12 for the 5th percentile pension.... [P]ublic pensions should pay close attention to the contracting terms they receive when investing in all forms of active management."

Juliane Begenau and Emil Siriwardane, via SSRN

Chicago Firefighters Push Pension Bill That Could Saddle City with $30 Million in Annual Costs

"The Chicago Firefighters Union Local 2 is making a renewed push to increase retirement benefits for 2,200 of its members at a heavy cost to taxpayers: $18 million the first year and $30 million every year after that.... [The proposal] would remove the 'birth date restriction' that has prohibited roughly 2,200 active and retired firefighters born after Jan. 1, 1966 from receiving a simple, 3% annual cost of living increase. Instead, they get half that amount -- an annual increase of 1.5% that is not compounded."

Chicago Sun-Times

What Model 403(b) Education for Teacher-Investors Looks Like

"Key Ingredients: [1] Led by a local teacher advocate; [2] Availability of excellent 403(b) vendor choices ... [3] Availability of excellent 457(b) choice ... [4] Participation of a Fiduciary Planner."

403bwise

[Opinion]

2020 Federal Retirement Security Blueprint (PDF)

11 pages. "[P]olicies to help Americans achieve [their] retirement goals.... [1] Expand opportunities to save for retirement by enhancing access to, and features of, workplace retirement plans; [2] Facilitate and encourage greater access to and use of lifetime income products in workplace retirement plans; [3] Preserve and promote access for retirement savers to professional financial guidance, education, and information; [4] Enhance protections to safeguard Americans from financial exploitation and fraud; and [5] Maintain and augment the current tax treatment of retirement savings."

Insured Retirement Institute [IRI]

[Opinion]

2020 State Retirement Security Blueprint (PDF)

"[K]ey steps the states can take to help all Americans achieve their retirement goals ... [1] Adopt a clear, consistent, and workable best interest standard of conduct for financial professionals. [2] Maintain the robust private-sector marketplace for retirement savings solutions. [3] Protect seniors and other vulnerable segments of the population against financial fraud and exploitation. [4] Establish uniform and work able safeguards to protect Americans' personal financial information. [5] Facilitate and encourage improvements to the consumer and advisor experience."

Insured Retirement Institute [IRI]

Benefits in General

Supreme Court Updates for 2020: Employee Benefit Cases

"On remand, the Court asked the Second Circuit to consider whether to allow new arguments made by the IBM plan fiduciaries and federal agencies regarding the duty to act on inside information when managing the assets of an employee stock ownership plan (ESOP).... [T]he Supreme Court recently decided to grant review of ... the Eighth Circuit's 2018 decision ... [to determine] whether ERISA preempts state law attempts to regulate pharmacy benefit managers (PBMs)." [Retirement Plans Committee of IBM v. Jander, No. 18-1165 (S. Ct. Jan. 14, 2020); Rutledge v. Pharmaceutical Care Mgmt. Assoc., Nos. 17-1609 and 17-1629 (8th Cir. June 8, 2018; cert. pet. granted Jan. 13, 2020)]

Verrill Dana LLP

Selected Discussions
on the BenefitsLink Message Boards

Spousal Consent - Loans, Hardship Withdrawals, Rollovers, Distributions

"I am often asked, outside of a divorce context, whether or not a Participant in a defined contribution plan needs to notify and/or obtain consent from his spouse before: (i) making a loan; (ii) taking a hardship distribution; (iii) rolling over Plan benefits to an IRA or other qualified Plan account; or (iv) taking a taxable distribution. I cannot find a definitive answer as it relates to 401(k), profit sharing, 403(b), ESOP, or other form of defined contribution plan, or with respect to an IRA."

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Press Releases

Upcoming Events About Retirement Plans or Executive Compensation

Feb. 27
Webcast
IRA and 401(k) Retirement Changes: Understanding the SECURE Act and How It Will Affect Your Business
Burnham
Feb. 27
Webcast
The Dirty Dozen: The Most Common Plan Mistakes and How to Fix Them
ERISApedia.com
Feb. 27
Alabama
Regional Benefits Forum
Southeast Benefits Education Network [SBEN]
Fee is required
Feb. 27
Webcast
Retirement Plans Legislative and Regulatory Update
TRI-AD
Feb. 27
Webcast
Multiple Employer Plans Under the SECURE Act
Wagner Law Group P.C.
Mar. 2
Colorado
IRA Institute
Ascensus
Fee is required
Mar. 2
Texas
IRA Seminar
Ascensus
Fee is required
Mar. 3
Webcast
Navigating Change in an Evolving Government Retirement Industry
CBIZ, Inc.
Mar. 4
Webcast
Understanding Earned Income
American Society of Pension Professionals & Actuaries [ASPPA]
Fee is required
Mar. 4
Texas
IRA and HSA Seminar
Ascensus
Fee is required
Mar. 4
Webcast
Controlled Group Liability and Successor Employer Rules After PBGC v. Findlay Industries Inc.
Strafford
Fee is required
Mar. 4
Ohio
What To Do When Culture Sucks
Worldwide Employee Benefits Network [WEB] - Greater Cincinnati Chapter
Fee is required

Most Popular Items in the Previous Issue

ARA Report: Sources Say IRS Planning Big Changes to VCP
American Retirement Association [ARA]

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BenefitsLink Retirement Plans Newsletter, ISSN no. 1536-9587. Copyright 2020 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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