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Retirement Plans Newsletter

September 20, 2023

2 New Job Opportunities 2 New Job Opportunities


Tenth Circuit Ruling on Pleading Standard Could Lead to More Dismissals (PDF)

"The three-judge panel's 48-page opinion ... joined the Third, Sixth, Seventh and Eighth circuits in embracing a pleading standard that requires [ERISA] plaintiffs to offer up a 'meaningful benchmark' by which a court can compare an allegedly mismanaged plan to a better one....[T]he appellate panel explicitly permitted Barrick to use documents referenced in, but in addition to the complaint, to successfully dispute higher fee allegations on the facts. " [Matney v. Barrick Gold of N. Am., No. 22-404 (10th Cir. Sept. 6, 2023)]  MORE >>

The Wagner Law Group, via Law360


Keep Current with Ever-Changing IRS Regulations & more with ASC CE Webcasts!

Rehires in Qualified Plans, Current Developments (there are so many!!) and Ethics are just a few of the upcoming CE webcast topics led by ERISA expert John Griffin, J.D., LL.M. For more information and registration, visit our website today!

Sponsored by ASC

The Importance of Taking a Holistic Approach in Reviewing 401(k) Investment Options

"Plan fiduciaries must ensure that, in addition to reviewing funds' investment performance over different time periods and analyzing any fees charged by the funds, they consider the funds' liquidity and determine if there are any surrender fees, penalties, or adjustments to get out of the funds, either on a participant or plan level."  MORE >>

Haynes and Boone, LLP

DOL Starts Tackling SECURE 2.0 Reporting and Disclosure Updates

"As a first step toward updating ERISA's reporting and disclosure requirements for 10 different provisions of the SECURE 2.0 Act ... the [DOL] has issued an expansive request for information (RFI). The RFI covers SECURE 2.0's new requirement for paper statements and other provisions that apply to defined contribution (DC) and defined benefit (DB) plans -- including pooled employer plans (PEPs)."  MORE >>


Could I Fail My First 401(k)/403(b) Plan Financial Statement Audit?

"Even if the audit finds an operational failure, the IRS correction program likely offers a pre-approved solution through [EPCRS].... [This article summarizes] the most typical audit findings[.]"  MORE >>

Belfint Lyons Shuman

CRS Report: U.S. Retirement Assets -- Data in Brief

"As of December 31, 2022, a total of $37.8 trillion was held in U.S. retirement plans and accounts, of which $26.3 trillion was in employer-sponsored plans and $11.5 trillion was in IRAs.... From 2013 to 2022, total real (inflation-adjusted) retirement assets increased by $4.4 trillion (13.3%).... The growth in IRA assets contributed most to retirement asset growth with a $2.8 trillion real increase from 2013 to 2022. DC plans sponsored by the federal government grew by the greatest percentage rate at 43.4%. Holdings of financial assets by private sector DB, federal DB, and state and local DC plans all decreased in inflation-adjusted terms from 2013 to 2022." [R47699 Sep. 20, 2023]  MORE >>

Congressional Research Service [CRS]


Foxx, Good Sound Alarm Over DOL's Investigations Hurting American Savers

"Education and the Workforce Committee Chairwoman Virginia Foxx (R-NC) and Health, Employment, Labor, and Pensions Subcommittee Chairman Bob Good (R-VA) sent a letter to Acting Secretary of Labor Julie Su raising concerns over [EBSA] ... Foxx and Good write: 'Disturbing reports from stakeholders indicate that EBSA is failing to conduct its enforcement in a timely manner, creating unacceptable burdens for retirement plan sponsors and negatively impacting retirement savers, retirees, and their families.' "  MORE >>

Committee on Education and the Workforce, U.S. House of Representatives


Pension Rights Center Urges Protections for Electronic Recordkeeping of Pension Information

"[E]lectric recordkeeping has left its imprint on almost every corner of ERISA. And while it has made many of the quotidian aspects of ERISA plan administration quicker and less expensive, it has created new issues and sometimes compounded old unresolved ones. Many of these issues touch on the ability of participants and beneficiaries to demonstrate entitlement to benefits they have earned, often decades earlier."  MORE >>

Pension Rights Center

Benefits in General

2023 Benefits Strategy and Benchmarking Survey of Healthcare Organizations

"[T]op HR priorities for healthcare employers include: [1] A well-thought-out total rewards strategy is imperative for employee retention and engagement.... [2] Employers are looking for ways to expand mental health services and acceptability.... [3] Concerns about burnout are prompting employers to enhance career wellbeing resources ... [4] Financial wellbeing is increasingly important to employees, with 49% of healthcare organizations opting to auto-enroll their employees in a 401(k) or 403(b) plan."  MORE >>



Social Inflation Is Coming for Employment Verdicts, Too

"Section 510 of ERISA bars retaliation or similar employment actions against employees who exercise their rights under ERISA. For years, such claims.... lacked legs.... Recent decisions ... suggest that this dynamic is well on its way to changing, and that recovery under Section 510 is a risk that plan sponsors and their lawyers now have to take seriously at all times." [Kairys v. S. Pines Trucking, Inc., No. 22-1783 (3d Cir. July 25, 2023)]  MORE >>

Stephen Rosenberg, The Wagner Law Group

Employee Benefits Jobs

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Greensboro NC

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Wealth Planning Specialist


Allentown PA

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Selected New Discussions

Recharacterization of ACP Test Failures to After-Tax in a 403(b) Plan?

"Is it possible to take an HCE's ACP testing refund and have it recharacterized to an after-tax 'bucket' within a 403b plan? I would imagine the plan would need to issue a 1099R reporting the taxable event for the required distribution amount."

BenefitsLink Message Boards


"Secure Act 2.0 contains provisions for Roth contributions to SIMPLE IRAs beginning 2023. Has anyone seen any documents that offer that option? I have looked at the IRS website at forms 5304-SIMPLE (Rev. March 2012) and 5305-SIMPLE (Rev March 2002). Neither has been updated to provide for Roth. Is that really an option if the federal forms don't offer it? I am working on preparing notices to clients that sponsor SIMPLE plans and want to make sure I cover the options available."

BenefitsLink Message Boards

Should the Different Ways for a Participant to Get Money Be on the Same Claim Form?

"If (for 2024) a Section 401(k), Section 403(b), or governmental Section 457(b) plan provides many kinds of distributions such a plan may provide without tax-disqualifying the plan, a participant might face a choice of two or more kinds of distributions allowed on the same set of facts.... Each kind of distribution might invoke advantages and disadvantages all or some of which would not result from another of the kinds that could be taken in the same set of facts.... [If] a plan's administration uses a distinct claim form for each kind of distribution, a severed participant might reflexively use the form for a 'normal' distribution, and so might miss an opportunity to claim a different kind of distribution with different features. Or a before-severance participant might reflexively use the hardship form, perhaps missing an opportunity to consider another claim that would preserve advantages a hardship distribution lacks.... Should a plan's administrator -- practically, its recordkeeper or third-party administrator -- put all the available kinds of distribution on one claim form? Why or why not? What would be the advantages? What would be the disadvantages or difficulties? If you think its unwise or impractical to put all or many kinds of distribution on one claim form, what methods would you suggest to inform a participant about one's opportunity to consider different kinds?"

BenefitsLink Message Boards

Press Releases

The Retirement Advantage (TRA) Strengthens Distribution Team in the Southwest

TRA [The Retirement Advantage]

Risk Strategies Acquires orchestrateHR Inc. and Affiliate eBen Benefits

Risk Strategies

Webcasts and Conferences
(Retirement Plans / Executive Compensation)

Law and Policy Washington Update

October 12, 2023 WEBINAR


SECURE 2.0: Portability -- Will Auto-in Become the New Default?

October 25, 2023 WEBINAR

Thompson Hine LLP

Social Security and You

October 25, 2023 WEBINAR

TRA [The Retirement Advantage]

IRA Transfers and Rollovers

November 16, 2023 WEBINAR


Last Issue's Most Popular Items

A California Law Firm's Shakedown of Corporate America with Manufactured Claims of Excess Recordkeeping Fees

Euclid Specialty Managers

Common Mistakes Made by Retirement Plan Sponsors


District Court Grants Summary Judgment in ESOP Litigation

Husch Blackwell

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

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