Retirement Plans Newsletter

June 30, 2020

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[Guidance Overview]

IRS Still CARES: Suspension or Reduction of Safe Harbor Contributions for 2020

"Notice 2020-52 permits employers to suspend or reduce safe harbor contributions in 401(k) and 403(b) plans after March 13, 2020, for the balance of the year, regardless of whether the employer is suffering an economic loss or gave a 'maybe not' notice at the beginning of the year.... However, this relief is time-limited: to take advantage of these special rules, the amendment to the plan suspending or reducing the safe harbor contributions must be adopted by August 31, 2020."

Ferenczy Benefits Law Center

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[Guidance Overview]

Questions and Answers: We CARES -- Now We Know (PDF)

16 pages, current through June 24, 2020. Topics covered: [1] Coordination of limits; [2] Coronavirus-related distributions: recontributions/tax payments, withholding & reporting, effect on top-heavy, defined benefit, and plan amendments; [3] Coronavirus-related loans: suspensions, documentation, and refinance/reamortization. [4] Deadline extensions; [5] Partial plan terminations; [6] Participant notices; [7] Qualified individual/certification; [8] Required minimum distribution relief; [9] Spousal consent; and [10] Miscellaneous.

ERISApedia.com

[Guidance Overview]

Administering CARES Act's Waiver of 2020 RMDs from DC Plans

"Action steps for DC plan sponsors ... [1] Identify participants and beneficiaries who, without the CARES Act relief, would have received 2020 RMDs or extended 2020 RMDs in 2020 or early 2021. [2] Decide whether (and if so, how) to offer individual elections to receive or forgo payments, and determine whether spousal consent is needed ... [3] Decide whether to offer direct rollovers with respect to 2020 RMDs and extended 2020 RMDs paid during 2020. [4] Consider whether to offer participants who received 2020 RMDs and extended 2020 RMDs without being offered a direct rollover the opportunity to roll the amounts back into the plan. [5] Consider special communications targeted to specific groups."

Mercer

[Guidance Overview]

IRS Provides Additional Guidance for CARES Act Loans, Coronavirus-Related Distributions and RMDs

"[Notice 2020-50] largely formalizes guidance the IRS set forth in a series of questions and answers in May of 2020 ... [T]he Notice expands the categories of individuals who are eligible for coronavirus-related distributions and loans under the CARES Act.... [Notice 2020-51] provides guidance on the waiver of 2020 required minimum distributions (RMDs) under the CARES Act.... Notice 2020-51 also provides transition relief related to the change in the required beginning date for RMDs under the [SECURE Act].'

Ice Miller LLP

[Guidance Overview]

DOL Unveils New Fiduciary Rule Proposal

"The [DOL] has finally unveiled its much anticipated fiduciary rule, ... with some new implications for recordkeepers, Pooled Employer Plans and rollover advice.... As part of what it describes as a 'principles-based approach,' the proposal defines retirement investors as plan participants and beneficiaries, IRA owners, and plan and IRA fiduciaries.... [U]nder the new exemption, financial institutions and investment professionals could receive a wide variety of payments that would otherwise violate the prohibited transaction rules[.]"

American Retirement Association [ARA]

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[Guidance Overview]

DOL Unveils Proposed Exemption for Fiduciaries

"To receive the exemption, an investment professional or financial institution, among other requirements, must abide by the impartial conduct standards, which, as outlined in a 2018 Labor Department field assistance bulletin, have three components: a best interest standard; a reasonable compensation standard; and a requirement to make no misleading statements about investment transactions and other relevant matters."

Pensions & Investments

[Guidance Overview]

DOL Addresses Limited Use of Private Equity Investments in Multi-Asset Class Plan Investment Options

"[Information Letter 2020-06-03] does not address any ERISA issues that would apply if a defined contribution plan permitted participants to invest their accounts directly in private equity funds on a stand-alone basis. Instead, the DOL, pursuant to the request of two private equity fund managers, provided its views on the use of private equity investments included in a plan-designated investment alternative that constituted 'a multi-asset class vehicle structured as a custom target date, target risk, or balanced fund.' "

Sidley Austin LLP

[Guidance Overview]

DOL Proposed Rule Urges Caution Regarding the Use of ESG Factors for ERISA Plans

"[T]he Proposal does not completely ban plans from making ESG investments. Yet it is likely to lead many plan fiduciaries to desist from making such investments or at least be sure that such investments are made solely for pecuniary reasons. While the Proposal technically still allows the consideration of collateral ESG benefits when deciding between two economically-indistinguishable investment options, the DOL expresses skepticism whether such an event is likely to occur and the Proposal would require careful documentation of any such conclusion."

Mayer Brown

[Guidance Overview]

DOL Releases Proposed Regs on ESG Investments

"How effective these rules will be in limiting ESG investment will depend very much on how these rules are enforced. Probably the biggest concern for sponsors in this regard is the possibility of litigation based on the rules articulated in this proposal. The new rules would be effective 60 days after finalization. Comments must be submitted by 30 days from the publication of the proposal in the Federal Register." [Publication is scheduled for June 30, 2020.]

October Three Consulting

Second Circuit Reinstates Decision for Plaintiffs in Jander

"On the one hand, the Second Circuit seems to believe that there are in fact different and parallel securities disclosure obligations under the securities laws and ERISA's fiduciary requirements. On the other hand, at least in Justice Gorsuch's view, the argument that ERISA cannot require ERISA fiduciaries, in their role as corporate officers, to make securities law disclosures must be addressed by the courts and may indeed come up again 'at later stages in this very litigation'[.]' [Jander v. Ret. Plans Comm. of IBM, No. 17-3518 (2d Cir. Jun. 22, 2020)]

October Three Consulting

Fifth Circuit Upholds Dismissal of Diversification and Prudence Claims Targeting a Single Stock Fund in a 401(k) Plan

"[T]he Court's decision offers meaningful guidance to fiduciaries of participant-directed plans and, more specifically, to those evaluating what to do with a company stock fund after a spinoff or divestiture.' [Schweitzer v. The Investment Comm. of the Phillips 66 Savings Plan, No. 18-20379 (5th Cir. May 22, 2020) ]

Proskauer Rose LLP

CARES Act: 'In Person' Signature Witness Relief Provided for Retirement Plans

"The IRS does not define 'Plan Representative.' Best practice is to have an authorized representative of the company sign the form or have this individual officially designate someone such as a Human Resources staff member, company executive, or plan trustee to witness the spousal consent."

TRI-AD

[Opinion]

ESG, the DOL, and the Fiduciary Imperative

"The DOL has just issued ESG guidance that emphasizes fiduciary duty when it comes to selecting retirement plan investments. The ruling doesn't discount ESG factors. It does, however, say these factors cannot be placed ahead of the financial best interests of plan beneficiaries.... The difference between this issuance and past DOL declaration is two-fold. First, it recognizes the fiduciary imperative. Second, it has staying power. This one-two punch poses concerns for those who spot the marketing attraction of placing ESG-based products in retirement plans."

Fiduciary News

Press Releases

Most Popular Items in the Previous Issue

Text of DOL Notice of Proposed Class Exemption: Improving Investment Advice for Workers & Retirees (PDF)
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

Text of DOL Final Regs: Conflict of Interest Rule -- Retirement Investment Advice: Notice of Court Vacatur (PDF)
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

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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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