logo logo

Retirement Plans Newsletter

February 14, 2023

New Job Opportunity Today New Job Opportunity Today


[Guidance Overview]

Exceptional Usefulness and Quality icon ERISA Section 408(b)(2): Is That Still a Thing? (PDF)

"If you [as a service provider] decide to continue to accept revenue sharing and either cannot obtain the reporting necessary to follow [steps described in this article] or do not want to spend the time or energy to do so, understand the risk that you are taking.... [U]nder no circumstances should you be providing services to retirement plans and their sponsors without a written service agreement.... [T]he ability to demonstrate clarity of the services you are providing, and the fees charged for those services goes a long way to meet the disclosure rules "  MORE >>

Ferenczy Benefits Law Center, via Journal of Pension Benefits

[Guidance Overview]

EBSA Proposes VFCP Amendments

"The IRS's SCP works anonymously, merely requiring the plan administrator to adhere to certain correction methods and to save all appropriate documentation. The EBSA's proposed SCC will provide an additional correction option to use than before, but it is not anonymous. This may cause hesitation for those interested in participating in the SCC."  MORE >>


[Guidance Overview]

To Err Is Human; to Correct Is Provided for in SECURE Act 2.0

"[T]he following changes [are] effective immediately: [1] Plan fiduciaries are no longer required to seek recovery of overpayments in certain circumstances. [2] SECURE 2.0 expands the Employee Plans Compliance Resolution System (EPCRS) to allow for self-correction in a broader array of situations."  MORE >>

Sidley Austin LLP

[Guidance Overview]

SECURE 2.0: Qualified Plan Corrections, Compliance, and Changes to EPCRS

"There are 13 sections of SECURE 2.0 that are specifically included to clean up [IRS] and U.S. [DOL] plan compliance inconsistencies, omissions, or scrivener's errors in prior laws and regulations or to allow plan sponsors to more easily self-correct violations. This article will provide a brief overview of the sections of SECURE 2.0 related to complying with the law or correcting plans to bring them back into compliance."  MORE >>


Florida District Court Strikes Down DOL Guidance Making Rollover Advice Fiduciary

"The U.S. District Court for the Middle District of Florida ruled that the DOL was 'arbitrary and capricious' in its interpretation of a five-part test to determine whether a financial advisor is a fiduciary to a retirement account.... In a mixed decision, [the judge] denied the DOL's motion to dismiss the suit, while granting DOL summary judgment on counts that involved other ASA allegations against the FAQs." [American Securities Ass'n v. DOL, No. 22-0330 (M.D. Fla. Feb. 13, 2023)  MORE >>

InvestmentNews; subscription may be required

A Deep Dive Into the Dish Network Excess Fee Decision

"Key Points [1] The Court does not allow the defense to prove with participant account statements at the motion to dismiss stage that active plan participants paid nothing in recordkeeping fees, but finds the comparisons to eleven other random plans 'inapt.' [2] The court follows the Sixth Circuit in CommonSpirit to recommend dismissal of identical claims that the active suite of Fidelity Freedom Funds are imprudent because of higher fees and alleged underperformance compared to the Fidelity index suite." [Jones v. DISH Network Corp. No. 22-0167 (D. Colo. mag. rep. Jan. 31, 2023)]  MORE >>

Euclid Specialty Managers

Tenth Circuit: Arbitration Provision in ESOP Was Unenforceable

"In litigation arising from an [ESOP's] purchase of employer shares from the employer's board members, the Court of Appeals for the Tenth Circuit held that the ESOP's arbitration provision requiring individual arbitration prevented a plan participant from effectively vindicating plan-wide remedies available under [ERISA], and therefore was unenforceable." [Harrison v. Envision Mgmt. Holding, Inc. Bd. of Directors, No. 22-1098 (10th Cir. Feb. 9, 2023)]  MORE >>

Thomson Reuters Practical Law

24 States Sue Department Of Labor Over ESG Rule

"While it is entirely possible this lawsuit will be tossed on motion in fairly short order, it is also possible that the court will allow it to proceed, raising questions about the viability of retirement plan ESG investment and, e.g., pro-ESG proxy voting policies that many hoped were laid to rest by DOL in its amendment of the applicable ERISA regulation at the end of last year. [This article reviews] the claims made in the complaint ... [and discusses] plaintiffs' claims and their substantive arguments." [Utah v. Walsh, No. 223-00016, (N.D. Tex. complaint filed Jan. 26, 2023)]  MORE >>

October Three Consulting

CRS Report on Social Security: The Government Pension Offset (PDF)

19 pages. "Opponents argue that the GPO is not well understood and that it harms lower-wage workers. The GPO's defenders maintain that it helps ensure that only financially dependent spouses receive the Social Security spousal or widow(er)'s benefit, while curtailing what otherwise would be an unfair advantage for government workers who are not covered by Social Security." [RL32453, updated Feb. 13, 2023]  MORE >>

Congressional Research Service [CRS]

Estimates of the Financial Effects on Social Security of Enacting the Social Security Expansion Act (PDF)

25 pages. "[The Social Security Expansion Act] includes nine provisions with direct effects on the Social Security trust funds.... [E]nactment of these provisions would extend the ability of the OASDI program to pay scheduled benefits in full and on time throughout the 75-year projection period. The date of projected depletion of the combined OASI and DI Trust Fund reserves is 2035 under current law and the intermediate assumptions of the 2022 Trustees Report."  MORE >>

Office of the Chief Actuary, U.S. Social Security Administration [SSA]


Are Pensions the Answer to the Public-Sector Worker Shortage?

"[As] the number of layoff announcements in the private sector increase and a record number of Americans withdraw funds from their 401(k)s as a result of financial distress, the public sector may be uniquely positioned to reverse its worker shortage with a highly attractive benefit that gives it an edge over the private sector: a pension."  MORE >>

Route Fifty

Employee Benefits Jobs

View job as Retirement Sales Consultant
            for Alerus Financial

Retirement Sales Consultant

Alerus Financial

Remote / AZ / CA / HI / NV / UT

View job as Retirement Sales Consultant for Alerus Financial

Selected New Discussions


"A couple of questions: 1. When restructuring do I have to an HCE in each component group? As long as each group passes coverage, I don't think so, but hoping to verify. I do understand that doing that may mean plan has to pass ratio percentage test at 70%. 2. If each rate group in the component plans pass ratio at over 70%, do I have to pass the ABPT on the whole? Normally I wouldn't look to the ABPT if every rate group is over 70%, but in this case the only reason that is happening is because I restructure. Thanks for any guidance."

BenefitsLink Message Boards

Are Employers Prepared for Issues Created by Providing an Incentive for 401(k) Deferrals?

"An employer now may give a de minimis financial incentive to employees who elect Section 401(k) contributions. If that incentive is a 'low-dollar gift card' some in Congress mentioned, an employer likely must tax-report on Form W-2 as taxable wages the gift card's cash-equivalent amount. What do BenefitsLink neighbors think about whether America's payroll people are ready to take on that work?"

BenefitsLink Message Boards

Press Releases

Business Group on Health Names Brendon Perkins As Chair of Board of Directors

Business Group on Health

Empower Joins New Consortium to Accelerate Adoption of Auto Portability


Webcasts and Conferences
(Retirement Plans / Executive Compensation)

SECURE 2.0 Impact on Benefit Plans, Part 1

February 21, 2023 WEBINAR


SECURE 2.0 Impact on Benefit Plans, Part 2

March 14, 2023 WEBINAR


403(b) Plans: Cycle 2 Update

March 30, 2023 WEBINAR


SECURE 2.0 Impact on Benefit Plans, Part 3

April 4, 2023 WEBINAR


Last Issue's Most Popular Items

SECURE 2.0: Oops! So the Employer-Sponsored Retirement Plan Overpaid?

Ogletree Deakins

SECURE 2.0 Provides New and Expanded Retirement Plan Correction Rules

Verrill Dana LLP

The SECURE 2.0 Act of 2022: Federal Agencies' Required Actions and Stakeholder Reports


Unsubscribe  |   Change Email Address

Search Past Issues   |   Privacy Policy

Submit an Article   |   Contact Us   |   Advertise Here

Copyright 2023, 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, 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.

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

Links to web sites other than and are offered as a service to our readers. We are not involved in their production and are not responsible for their content.