"In recognition of the atypical market conditions of late 2022 and early 2023, and the way those conditions impact assets and liabilities for purposes of determining whether a 4010 filing is required, this Technical Update provides a one-time waiver of the 4010 filing requirement for filers meeting specified criteria.... Entities using this waiver must notify PBGC no later than 15 days before the date the 4010 filing would have been due if not for the waiver."  MORE >>

"Solo-ks cease to be so solo once employees are hired. If you (or your client) have an owner-only plan and believe that there are -- or will be -- employees, try to be proactive and consider the need for plan modifications beforehand. If you are already past that point, ... [m]ake sure the employee is offered the Plan when the document says they are eligible and given any required QNEC for a missed deferral. Looking forward, you can always change the plan design to better fit the employee population and the employer's goals."  MORE >>

"The anticipated DOL proposed fiduciary regulation could be sent to the Office of Management & Budget (OMB) in a matter of weeks. The proposal will likely say that a rollover recommendation to a participant in an ERISA governed retirement plan is a fiduciary act. The DOL will also likely propose amendments to prohibited transaction exemptions, including to PTE 84-24, the exemption used for fiduciary rollover recommendations into individual annuity contracts."  MORE >>

"[T]he court concluded that both New York and Delaware law would find the At-Issue Notes to be debt ... This holding came as a surprise because the market practice among the ERISA bar of the asset-based securities industry is generally to view REMIC certificates as equity interests and, rather than look to avoid ERISA plan asset status, instead rely upon a set of prohibited transaction exemptions referred to as the 'underwriter's exemptions' to deal with the consequences of ERISA plan asset status." [Powell v. Ocwen Financial Corporation, No. 18-1951 (SDNY June 1, 2023)]  MORE >>

"The appeals court asked the district court judge to review whether revising the BrokerageLink contract was a prohibited transaction under ERISA or whether it qualified for an exemption under this provision. The judges also asked the district court to review whether the defendants adequately monitored the compensation Fidelity received through BrokerageLink and Edelman Financial Engines." [Bugielski v.AT&T Services, Inc., No. 21-56196 (9th Cir. Aug. 4, 2023)]  MORE >>

"The court found that AT&T needed to consider the compensation Fidelity received from Financial Engines and BrokerageLink when determining whether 'no more than reasonable compensation' was paid for Fidelity's services. The district court did not engage in this analysis; therefore, the court remanded the matter to the district court ... The court also reversed the district court's judgment in favor of AT&T on Plaintiffs' duty-of-prudence claim because it cannot conclude that AT&T, in fact, considered the fees Fidelity received from Financial Engines and BrokerageLink." [Bugielski v. AT&T Servs., Inc., No. 21-56196 (9th Cir. Aug. 4, 2023)]  MORE >>

"[P]lan governance requires ongoing due diligence to monitor IRS and [DOL] requirements. Good controls, policies and procedures can provide the oversight needed for maintaining plan documentation that is effective and compliant. Effective governance can prepare you for a plan audit or compliance check, thus mitigating risk. Plan participants will also have a better experience when the plan operates efficiently."  MORE >>

"[D]igital recordkeepers' ability to offer lower fees or better cost structures is a primary motivator for more than four in ten (43%) plan sponsors considering working with them this year. Payroll integration (33%), better digital capabilities with online dashboards (36%), easier participant onboarding (34%), and innovative technology platforms (31%) also add to the appeal of working with digital plan providers."  MORE >>

"40% of non-retired respondents plan to take their Social Security benefits between 62-65 ... The choice to forgo larger Social Security payments is a deliberate one, as 72% of non-retired investors -- and 95% of non-retired ages 60-65 -- are aware that waiting longer earns higher payments.... Among working Americans participating in a workplace retirement plan, 32% said their plan provided a retirement income solution; 39% said they didn't know; and 29% said no. The vast majority (82%) of those who are offered an income solution in their plan are likely to use it."  MORE >>

"Pension discount rates reversed June's modest move lower to inch slightly higher in July. Equity market returns were positive once again across the world. Most if not all pension plans should have experienced funded status gains in July."  MORE >>

"The Davita case ... demonstrates how many meritless excess fee cases are designed to get past motion to dismiss -- even when the alleged facts are objectively false. It shows how ERISA has been weaponized to create false liability against America's plan sponsors, even when the plans have low fees and offer high-performing, quality investments like the Davita plan." [Teodosio v. Davita, Inc., No. 22-0712 (D. Colo. Jul. 26, 2023)]  MORE >>