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Retirement Plans Newsletter

May 2, 2022

4 New Job Opportunities 4 New Job Opportunities

 

[Guidance Overview]

Brokerage Window Fiduciary Duties in Light of DOL Cryptocurrency Guidance

"Ali Khawar, acting secretary of [EBSA], has stated that the intent of the Cryptocurrency Guidance was not a 'backdoor way to regulate brokerage windows in a whole new way.' He also clarified that the guidance does not say that fiduciaries are responsible for reviewing and approving each individual investment option available under a brokerage window. However, further guidance is needed to clarify the DOL's position on the scope of fiduciary responsibility for investment options under a brokerage window."  MORE >>

Kilpatrick Townsend

[Guidance Overview]

IRS Issues Proposed Rule for MEPs

"In addition to clarifying the exception to the unified plan rule, this guidance expedites the notification process and details the steps that a PPP must follow to take advantage of the unified plan rule exception. The IRS will consider reliance on the proposed regulations -- even though they are not effective yet -- as a good faith interpretation of IRC Sec. 413(e), which provides the MEP and PPP requirements."  MORE >>

Ascensus

[Guidance Overview]

CRS Report: Federal Retirement Plans -- Frequently Asked Questions

24 pages. "The vast majority of the civilian federal workforce is covered by either the Civil Service Retirement System (CSRS) or the Federal Employees' Retirement System (FERS), depending on date of entrance into federal service.... This FAQ focuses on policy issues related to CSRS and FERS while also identifying additional retirement plans that provide benefits to specific populations of civilian federal employees. It provides the legislative history of CSRS and FERS as well as information on benefits and financing." [R47084, May 2, 2022]  MORE >>

Congressional Research Service [CRS]

Exceptional Usefulness and Quality icon Is Bitcoin Prudent? Is Art Diversified? Offering Alternative Investments to 401(k) Participants

42 pages. "[This article] concludes that REITs, private equity funds, and hedge funds can, with limits, today be offered as investment choices to 401(k) participants, but that cryptocurrencies (including Bitcoin), art, and environmental-social-governance (ESG) funds cannot.... The threshold, fact-intensive question that this Article addresses is whether, before considering specific investments, any generic category of alternative investments ought to be considered for the menu of choices offered to 401(k) participants."  MORE >>

Prof. Edward A. Zelinsky, via Connecticut Law Review

Post-Hughes v. Northwestern, Plaintiffs Win in Three Motion-to-Dismiss Decisions

"It is certainly possible to read Hughes as a remand to the Seventh Circuit to determine how these sorts of claims -- where imprudence is alleged based on an (arguably superficial) comparison of fees, and without considering factors such as revenue sharing or the non-comparability of funds -- should be considered at the motion to dismiss stage. [The courts in these three cases], however, seem to be reading Hughes v. Northwestern as explicitly holding that those sorts of claims are sufficient to survive a motion to dismiss."  MORE >>

October Three Consulting

Central States Has Filed Request for SFA with PBGC

"The first 34 plans that filed requested a total $8.4 billion in bailout money from the PBGC Special Financial Assistance program for troubled multiemployer plans.... [T]he PBGC weekend update showed one new plan -- the Central States, Southeast & Southwest Areas Pension Plan, with 364,908 participants -- which is asking for $35 billion dollars."  MORE >>

Burypensions

PBGC Approves Special Financial Assistance Application for Local 783 Pension Plan

"[PBGC] has approved the application submitted to the Special Financial Assistance (SFA) Program by the Cement Masons Local 783 Pension Plan (Local 783 Plan). The plan, based in Houston, Texas, covers 51 participants in the construction industry. The Local 783 Plan became insolvent in November 2016.... The plan will receive $3.8 million in SFA, including interest to the expected date of payment to the plan."  MORE >>

Pension Benefit Guaranty Corporation [PBGC]

PBGC Approves Special Financial Assistance Application for Local 681 Pension Plan

"[PBGC] has approved the application submitted to the Special Financial Assistance (SFA) Program by the Cement Masons Local Union 681 Pension Plan (Local 681 Plan). The plan, based in Houston, Texas, covers 195 participants in the construction industry. The Local 681 Plan became insolvent in August 2016.... The plan will receive $10.8 million in SFA, including interest to the expected date of payment to the plan."  MORE >>

Pension Benefit Guaranty Corporation [PBGC]

The Design of Defined Contribution Plans

"This paper studies how employers and plan providers (recordkeepers) design these plans.... [L]ow plan quality and limited provision can come from two sources. First, employer willingness to pay may be misaligned with that of workers or of regulators. Second, the market for recordkeeping may be imperfectly competitive.... [S]ignificant changes to plan quality require modifying employer preferences.... [The authors] conclude that only direct quality regulation can lead to significant quality improvements. Recent proposals can increase plan provision but have negligible quality effects."  MORE >>

National Bureau of Economic Research [NBER]; purchase required for full document

ERISA Advisory Council Confronts Retirement Savings Gaps

"Although the council acknowledged the current limitations of the US retirement system -- calling it 'fragmented' -- the council largely limited its recommendations to actions within DOL's authority. Several recommendations aim to increase participation and savings rates for women and people of color in employer-sponsored defined contribution (DC) plans by mitigating certain factors that [disproportionately] affect those groups."  MORE >>

Mercer

[Opinion]

Why the DOL Should Partner with Stakeholders to Revise Its Cryptocurrency Guidance

"Changes to positions on issues such as fiduciary responsibilities for brokerage window investments should be made for general policy reasons and not simply to target one class of potential plan investments....The [Compliance Assistance Release] purports to cover not only direct crypto investments, but derivatives, investments 'whose value is tied to cryptocurrency' and 'related investments'. These phrases are so vague that it is not even clear which investments the DOL is warning about.... The DOL needs to provide guidance on what fiduciaries should consider in making prudent determinations about the availability of crypto in their plans, rather than simply targeting them for investigation."  MORE >>

Cohen & Buckmann, P.C.

Benefits in General

Sixth Circuit Holds ERISA Section 502(a)(2) Claims May Not Be Arbitrated Absent Plan Consent

"Individual plaintiffs' ERISA Section 502(a)(2) claims for alleged individualized harm to their respective retirement accounts are derivative and 'belong,' in the first instance, to the plan. The Sixth Circuit joined several other federal courts in holding that individual plaintiffs pursuing ERISA Section 502(a)(2) claims on behalf of a defined contribution plan may not be compelled to arbitrate those claims absent evidence the plan has consented to arbitration." [Hawkins v. Cintas Corp., No. 21-3156 (6th Cir. Apr. 27, 2022)]  MORE >>

Faegre Drinker

Executive Compensation and Nonqualified Plans

The Music of the Night: Phantom Plans for Early Stage Companies

"Phantom plans are simply promises to pay compensation in the future. However, companies that go the phantom plan route need to step carefully to comply with tax rules, and in particular, Code Section 409A. Complicated phantom plan designs can quickly push into compliance gray areas and are often difficult for participants to understand."  MORE >>

Holland & Hart LLP

Employee Benefits Jobs

View job as Plan Document Specialist
          for AimPoint Pension Plan Document Specialist

AimPoint Pension

Remote

View job as Plan Document Specialist
          for AimPoint Pension

View job as New Business Implementation Specialist
          for AimPoint Pension New Business Implementation Specialist

AimPoint Pension

Remote

View job as New Business Implementation Specialist
          for AimPoint Pension

View job as Finance Manager
          for Vestwell Finance Manager

Vestwell

Remote / New York NY

View job as Finance Manager
          for Vestwell

View job as Pension Consultant
          for Pension Associates Pension Consultant

Pension Associates

Remote / Stamford CT

View job as Pension Consultant
          for Pension Associates

Selected New Discussions

Employer Contributions Subject to FICA?

"Are company contributions to either 401k/PS plans or cafeteria plans 401(k) plans subject to FICA taxes? Do they add to the FICA wage base? I believe that they are/that they do, but I’m reading things that suggest otherwise. I know that they are not subject to withholding taxes."

BenefitsLink Message Boards

Audit Threshold -- Only Count Participants with Balances?

"Can someone send me a link to the DOL proposal to limit audits to those participants who have balances in the plan? Apparently there was a comment window that closed in November 2021 or something."

BenefitsLink Message Boards

Press Releases

Attorney John Sohn Returns to the Wagner Law Group

Wagner Law Group P.C.

Sharebuilder 401(k) Celebrates Small Business Week by Offering Free Set-Up on New 401(k) Plans Started Between May 2 - 23

Sharebuilder 401k

Webcasts and Conferences
(Retirement Plans / Executive Compensation)

Current Compensation Designs within Partnership Entities

May 12, 2022 WEBCAST

Hunton Andrews Kurth

Last Issue's Most Popular Items

SECURE 2.0 Could Mean Significant Changes to Retirement Savings Plans

Buck

Proposed IRS Regs Clarify SECURE Act Changes to RMD Rules for Beneficiaries

Verrill Dana LLP

Labor Department Criticizes Fidelity’s Plan to Put Bitcoin on 401(k) Menu

The Wall Street Journal; subscription may be required

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

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