Retirement Plans Newsletter

June 2, 2020

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Newly Posted
Webcasts, Conferences

The eDisclosure Regs are Here!
June 11, 2020 WEBCAST
ERISApedia.com

Derrin's Fireside Chat: We CARES - Session 7
June 17, 2020 WEBCAST
ERISApedia.com

Certified Retirement Education Specialist (CRES): Attracting New Clients in The Midst of a Pandemic
June 17, 2020 WEBCAST
National Tax-Deferred Savings Association [NTSA]

Career Management in a Nutshell, Retooling in the Post-Pandemic Economy
June 18, 2020 WEBCAST
Worldwide Employee Benefits Network [WEB] - Atlanta Chapter

Advanced Case Studies in EPCRS
June 23, 2020 WEBCAST
ERISApedia.com

Loans: Correcting Taxation, Qualification and Fiduciary Failures + COVID19
June 25, 2020 WEBCAST
Western Pension & Benefits Council

Current Evolution of EBP Audits + Revealing the Mysteries of Form 5330
June 25, 2020 WEBCAST
Pension Education Council of Atlanta [PECA]

Get Your Hands Off My Money!
July 14, 2020 WEBCAST
ERISApedia.com

Hardship Withdrawal Changes: COVID-19 impact
August 5, 2020 WEBCAST
American Society of Pension Professionals & Actuaries [ASPPA]

►See All 140 Upcoming Webcasts and Conferences

►See All 1558 Recorded Webcasts


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View COVID-19 News and Resources

[Guidance Overview]

SECURE Act Encourages Plan Sponsors to Offer Lifetime Income Options (PDF)

"Several of the provisions of the SECURE Act include at least tacit encouragement for defined contribution plan sponsors to offer lifetime income investment options to participants.... [T]he SECURE Act outlines a 'safe harbor' process for a plan sponsor to follow in order to have certainty that it has satisfied its fiduciary duty of prudence when selecting an insurance provider to offer a lifetime income investment product within the plan."

Legacy Retirement Solutions

[Guidance Overview]

DOL Provides More Options for Delivery of Retirement Plan Disclosures

"The final regulations contain some welcome changes from the proposed regulations ... [1] New initial notice requirements.... [2] New email delivery option.... [3] More generalized requirements for 'opt out' election.... [4] New website requirements.... [5] New NOIA requirements.... [6] More flexible readability requirements.... [7] Special rule for severance from employment."

Ascensus

Editor's Pick Supreme Court Protects Defined Benefit Plan Fiduciaries from Lawsuits

"The majority held that Thole and Smith do not have a sufficient stake in the outcome of the lawsuit because, win or lose, they would receive the same amount of monthly pension benefits from the plan.... The dissent disagreed with the majority's decision to distinguish the rights of defined-benefit plan participants and beneficiaries from the rights of those entitled to benefits from defined-contribution plans or grantor trusts.... The dissent also chided the majority for implying that a financial injury is necessary to establish Article III standing." [Thole v. U.S. Bank, N.A., No. 17-1712 (S. Ct. Jun. 1, 2020)]

SCOTUSblog

Supreme Court Limits Lawsuits by Defined Benefit Plan Participants

"This decision may have immediate impact in cutting off potential defined benefit plan lawsuits based on investment losses during a coronavirus-related recession. It will not necessarily apply to other pending litigation or potential claims involving defined benefit plans and should have no impact on litigation challenging defined contribution plan investments." [Thole v. U.S. Bank, N.A., No. 17-1712 (S. Ct. Jun. 1, 2020)]

Cohen & Buckmann, P.C.

Fifth Circuit Holds That Offering Single Stock Investments in a 401(k) Plan Is Not Per Se Imprudent

"The Fifth Circuit held that although the stock of the former parent was not statutorily exempt from ERISA's diversification because it was no longer a 'qualifying employer security', there was no obligation for the plan fiduciaries to force plan participants to divest from the funds." [Schweitzer v. The Investment Comm. of the Phillips 66 Savings Plan, No. 18-20379 (5th Cir. May 22, 2020) ]

Haynes and Boone, LLP

Feds Double Down on ERISA Disclosure Argument After SCOTUS Look

"Nothing in federal benefits law requires corporate insiders to make public disclosures beyond those required by securities law, the Department of Labor and the Securities and Exchange Commission told the Second Circuit in letters that doubled down on their earlier position. The agencies' letters, filed Monday, come five months after the U.S. Supreme Court ordered the Second Circuit to reconsider a dispute involving a 7% drop in the International Business Machines Corp. stock held by the company's 401(k) plan." [Retirement Plans Committee of IBM v. Jander, No. 18-1165 (S. Ct. Jan. 14, 2020); Jander v. Retirement Plans Comm. of IBM, No. 17-3518 on remand to 2d Cir.]

Bloomberg Law

Participant Communications Specific to the Pandemic

"Consider the implications of adopting the CARES Act.... Target messaging to affected populations.... Think beyond plan updates, to financial well-being.... [O]ne of the best things you can do as a plan sponsor is to reinforce a message they may not want but need to hear: The DC plan should be a last resort for getting cash. But that message needs to be delivered with empathy and compassion."

PLANSPONSOR; free registration may be required

Building Better Retirement Systems in the Wake of the Global Pandemic

"This paper offers an assessment of the status quo prior to the spread of the coronavirus, evaluates how retirement systems are faring in the wake of the shock ... [and examines] insurance and financial market products that may render retirement systems more resilient for the world's aging population.... [P]otential roles for policymakers are evaluated."

Pension Research Council, The Wharton School of The University of Pennsylvania

Editor's Pick Public Retirement Systems and the Pandemic, Part 2: The Litigation Risk of Benefit Modifications

"What benefits have been modified, resulting in litigation? ... What is the central claim being raised in benefits litigation? ... What is the key consideration involving Contract Clause claims? ... How does the Contract Clause analysis in pension benefits litigation differ from COLA litigation? ... What benefit changes for current retirees have been upheld? ... Several benefit modifications involve changing future accrual of benefits for current employees. How have courts analyzed these changes? ... What future benefits litigation is on the horizon?"

Fox Rothschild LLP

Editor's Pick Employee Benefits in the United States

"Retirement benefits were available to 91 percent of state and local government workers in March 2019 ... Sixty-nine percent of state and local government workers in the lowest 10th percent wage category and 95 percent of workers in the highest 10th percent wage category had access to retirement benefits. Seventy-seven percent of private industry workers had access to and participated in employer-provided retirement benefits ...  Retirement benefits were available to 31 percent of workers in the lowest 10th percent wage category and 88 percent of workers in the highest 10th percent wage category."

U.S. Bureau of Labor Statistics [BLS]

FAS87 ASC715 Discount Rates and Moody's Rates, May 31, 2020

An unofficial monthly report of the Moody's Daily Long-term Corporate Bond Yield Averages and Moody's Daily Treasury Yield Averages (used as benchmarks by some corporate pension plans).

David Rigby, via BenefitsLink Message Boards

[Opinion]

Amicus Brief of American Benefits Council in IBM Stock Drop Case on Remand to Second Circuit

27 pages. "As part of the requirement that ERISA stock-drop plaintiffs identify an alternative course of action, the Court emphasized that fiduciaries must operate within the constraints of background legal principles. To avoid individual liability, fiduciaries cannot be forced to violate the securities laws or to breach the wall between their fiduciary and non-fiduciary responsibilities. Nor should the Court create an ERISA claim for breach of fiduciary duty based on securities disclosures that sweeps more broadly than the laws specifically drafted to regulate securities disclosures." [Retirement Plans Committee of IBM v. Jander, No. 18-1165 (S. Ct. Jan. 14, 2020); Jander v. Retirement Plans Comm. of IBM, No. 17-3518 on remand to 2d Cir.]

American Benefits Council

[Opinion]

Plan Sponsors Have a Fiduciary Duty to Structure 401(k) Plans to Reduce the Harm Market Inefficiencies Pose to Plan Participants

"Retirement plan sponsors are in a unique position to help their employees avoid the ravages of market inefficiencies. In fact, they have a fiduciary duty to do so. From the very broad aspect of plan design to the specific rubric of the plan's investment option menu, 401(k) plan sponsors drive plan participants towards the right -- or wrong -- decision-making systems.... What can a plan sponsor do to better shepherd retirement savers?"

Fiduciary News

Executive Compensation
and Nonqualified Plans

Executive Compensation: Moving Forward in a COVID-19 World

"This post reviews the range of cost-cutting measures companies have enacted over the past few months, and provides guidance on executive compensation issues employers should consider as they move forward in a COVID-19 world.... Salary reductions.... Salary deferrals.... Layoffs.... What to do with underwater stock options? ... Adjusting performance metrics.... Restrictive covenants.... Succession planning."

Mintz

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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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