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Retirement Plans Newsletter

November 23, 2022

4 New Job Opportunities 4 New Job Opportunities


[Guidance Overview]

DOL Finalizes Amendments to ESG/Proxy Voting Rules

"The new rules significantly relax restrictions on ESG investing, eliminating special restrictions on ESG investments in defined contribution default investments (such as 401(k) plan target date funds), making the 'tie-breaker' rule -- which allows consideration of non-financial issues in certain circumstances -- more flexible, and eliminating recordkeeping and disclosure requirements with respect to the tie-breaker rule. [This article reviews] the highlights of the new rules, focusing on what changes the 2022 rules make to the 2020 rules."  MORE >>

October Three Consulting

[Guidance Overview]

DOL Gives a Green Thumbs Up to ESG

"[T]he Final ESG Rule moves the ball away from a 2020 DOL rulemaking in this area and toward a position that is more supportive of ESG investing. The Final ESG Rule provides fiduciaries with an interpretation of ERISA’s fiduciary standards that could allow for the consideration of ESG factors without violating those duties."  MORE >>

Morgan Lewis

[Guidance Overview]

Recent State Fiduciary and Best Interest Developments (PDF)

"To date, 27 states have adopted rules that follow the Suitability in Annuity Transactions Model Regulation issued by the National Association of Insurance Commissioners (NAIC). Recent additions ... include: Hawaii, Maryland, Minnesota, North Carolina, South Carolina, South Dakota and Wisconsin."  MORE >>

Faegre Drinker

[Guidance Overview]

New Determination Letter Program for 403(b) Plans

"Given the advantages of receiving a favorable determination letter from the IRS, plan sponsors of individually designed 403(b) plans may want to consider filing for a determination letter in accordance with the new program. Reviewing the guidance and examples provided in Revenue Procedure 2022-40 should assist plan sponsors in understanding when they can apply for an initial determination for their plan."  MORE >>


In Post-Northwestern Case, Seventh Circuit Dismisses Recordkeeping and Fund Fee Prudence Claims

"[This article focuses] on the court's decision and supporting legal analysis, and on the key legal issue: in fee-based ERISA prudence claims, what must a plaintiff plead to survive a motion to dismiss? ... Plaintiff must allege facts showing that comparators are in fact comparable.... A simple comparison of 'net fees' (expense ratio minus revenue sharing) is not, without more, adequate to state a claim.... The Supreme Court's [Northwestern decision] is limited." [Albert v. Oshkosh Corp., No. 21-2789 (7th Cir. Aug. 29, 2022)]  MORE >>

October Three Consulting

ERISA Fee Complaint Dismissed in Pennsylvania District Court, Extending Favorable Trend

"The decision is notable for delivering defendants a victory in the Third Circuit ... and for citing favorably to recent defendant-friendly opinions from the Sixth, Seventh, and Eighth Circuits." [Krutchen v. Ricoh USA, No. 22-678 (E.D. Pa. Nov. 15, 2022)]  MORE >>


Third Circuit Holds ERISA Claim Is Barred by the Probate Exception

"Though Applebaum argued that she was the valid beneficiary of her husband's 401(k) plan and that its proceeds should have bypassed the probate system, her beneficiary designation, and thus her right to estate property, is in dispute. Because of this, the claim falls within the probate exception to the court's jurisdiction." [Applebaum v. Fabian, No. 22-1049 (3d Cir. Nov. 21, 2022)]  MORE >>

Roberts Disability Law

Upcoming Deadline icon Year-End Compliance Issues for Single-Employer DB and DC Retirement Plans

"This Client Action Bulletin looks at key areas -- including administrative compliance issues -- that defined benefit and/or defined contribution plan sponsors should address by December 31, 2022.... [T]he 'Action' section at the end ... includes an update on the waiting game still in play for certain guidance covering those compliance amendments for which the original adoption deadlines have been extended."  MORE >>


401(k) Annual Administration Checklist for 2023

"[This 10-page checklist is] broken into three sections: [1] Deadline Tasks -- Summarizes the tasks that must be completed by a specific date; [2] Periodic Tasks -- Summarizes the tasks that may need completed throughout the year; [3] Plan Records -- Summarizes the records to maintain for documentation purposes."  MORE >>

Employee Fiduciary

How to Set Up Solo 401(k) Plans for Self-Employed Workers

"Among the several different types of retirement plans that are available to self-employed workers, solo 401(k) plans can offer the most flexibility and the ability to contribute the highest amount of tax-advantaged savings.... [T]here are some specific rules and regulations that are unique to solo 401(k) plans, which can add to the complexity of setting up and maintaining a plan. And for advisors who serve self-employed clients, managing a solo 401(k) plan is often a different process than managing other types of investments."  MORE >>

Nerd's Eye View


DOL's New ESG Rule 'Unremarkable'

"[T]he letter of the Rule is less provocative than advocates have been implying.... A simple reading of the Rule will tell you that the DOL appears to have removed a major fiduciary roadblock to including ESG-focused investments on retirement plan menus.... The door to the conversation may now be open, but the 800-pound gorilla remains in the room. The onus of fiduciary duty continues to restrain plan sponsors."  MORE >>

Forbes; subscription may be required

Benefits in General

[Guidance Overview]

DOL Proposes Changes to the Voluntary Fiduciary Correction Program (VFCP) and Related Prohibited Transaction Exemption

"EBSA is proposing numerous changes to the VFCP in an effort to streamline the program and encourage plan fiduciaries to correct breaches and reimburse plan losses.... EBSA reiterated that all welfare and pension plans may use the VFCP if they have a fiduciary breach for which there is an eligible transaction. The proposals would make only minor changes to the eligible transactions for welfare plans -- one of which involves delinquent participant contributions to an insured health plan."  MORE >>

Thomson Reuters Practical Law

Employee Benefits Jobs

View job as Education Consultant
            for Pentegra

Education Consultant


Remote / Putnam Valley NY

View job as Education Consultant for Pentegra

View job as Managing Consultant - Retirement Plans
            for CBIZ - Retirement & Investment

Managing Consultant - Retirement Plans

CBIZ - Retirement & Investment


View job as Managing Consultant - Retirement Plans for CBIZ - Retirement & Investment

View job as Lead Compliance Specialist - Retirement
            for CBIZ - Retirement & Investment

Lead Compliance Specialist - Retirement

CBIZ - Retirement & Investment


View job as Lead Compliance Specialist - Retirement for CBIZ - Retirement & Investment

View job as DB Pension Administrator
            for Primark Benefits

DB Pension Administrator

Primark Benefits

Remote / San Mateo CA

View job as DB Pension Administrator for Primark Benefits

Selected New Discussions

Due Date for First Required Minimum Distribution from a Defined Benefit Plan

"My very first age 72 RMD. Participant turned 72 in September 2022. When is the first RMD due from a defined benefit plan? Is the accrued benefit based on the 12/31/2021 accrued benefit if starting 4/1/2023? If participant wants 2022 RMD and withdraws in December 2022, can he receive annual lump sum by 12/31/2022?"

BenefitsLink Message Boards

Separate 204(h) Notices for Cash Balance Plan Having Multiple Groups?

"Cash balance plan with 10 groups. Some groups cover individuals (like founding member) and some groups cover multiple participants (like support staff). Benefits are to be frozen. Can 10 different 204(h) notices be provided for each group separately?"

BenefitsLink Message Boards

Press Releases

Katherine Brustowicz, David Gabor ´╗┐and Christopher H. Suh Listed Among Boston's Top Lawyers of 2022

The Wagner Law Group P.C.

Webcasts and Conferences
(Retirement Plans / Executive Compensation)

DOL Finalizes Rule Encouraging ESG Investing & Proxy Voting

November 30, 2022 WEBCAST

Groom Law Group

Reviewing DOL's Voluntary Fiduciary Correction Program and Proposed Changes

December 6, 2022 WEBCAST

ERIC [ERISA Industry Committee]

Last Issue's Most Popular Items

DOL Fact Sheet: Final Regs on Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights

Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

Text of DOL Final Regs: Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights (PDF)

Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

Text of IRS Notice 2022-62: 2022 Required Amendments List for Individually Designed Qualified and Section 403(b) Plans (PDF)

Internal Revenue Service [IRS]

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

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