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Retirement Plans Newsletter

October 6, 2023

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[Official Guidance]

Text of DOL Advisory Opinion 2023-01A: Application of Certain Fiduciary Responsibility Provisions of Title I of ERISA to Citi's Action for Racial Equity Asset Manager Program

"[The Program] involves a commitment by Citi to pay all or some portion of the investment management fees for 'Diverse Managers' retained by Citi-sponsored employee benefit plans.... [T]he Department would not view Citi as a fiduciary with respect to the selection of investment managers under the Plans solely by reason of establishing the program or by paying or reimbursing the Plans for Diverse Managers' fees pursuant to its program commitments and in accordance with plan documents.... [T]he Investment Committees' members will not violate their fiduciary duties under ERISA section 403(c)(1) or 404 solely by virtue of considering as one factor in the selection process that an investment manager's fees otherwise payable by the Plan will be reduced or paid in full by Citi under the program.... [T]he treatment of the investment manager's fee in the calculation and disclosure of the fund's total annual operating expenses ... would not fail to meet 29 CFR 2550.404c-1(b)(2)(B)(2)."  MORE >>

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

[Guidance Overview]

DOL Greenlights Citibank's Diverse Asset Manager Program

"[DOL Advisory Opinion 2023-01A approves] Citibank's Diverse Asset Manager Program as it relates to plans subject to [ERISA]. The Opinion provides a road map primarily for pension and 401(k) plan sponsors who wish to increase the portion of plan assets that are invested with diverse investment managers without running afoul of ERISA's rules."  MORE >>

Thompson Hine

[Guidance Overview]

Special DOL Proxy Voting Rule Set to Take Effect on December 1: Action Items for ERISA Fiduciary Investment Managers

"[I]nvestment managers of Pooled Plan Asset Vehicles should assess whether their existing documentation includes language sufficient to get comfortable that either [1] investing ERISA plans are not subject to an IPS or proxy voting policy that conflicts with the IPS or proxy voting policy of the Pooled Plan Asset Vehicle or [2] to the extent an investing ERISA plan is or may be subject to such a conflicting IPS or proxy voting policy, the ERISA plan has expressly or effectively agreed that its conflicting IPS or proxy voting policy will not apply and that instead the IPS and proxy voting policy of the Pooled Plan Asset Vehicle will apply."  MORE >>


Michigan District Court Dismisses ERISA Class-Action

"The plaintiffs' bar continues to target retirement plan fiduciaries with ERISA class actions, but precise arguments at the pleading stage that closely track the developing standard and engage not only with the specific facts alleged but also those that are publicly available about alleged comparator funds can successfully defeat imprecise allegations of imprudence." [England v. Denso International America, Inc., No. 22-11129 (E.D. Mich. Jul. 28, 2023)]  MORE >>


House Committee Letter to EBSA Secretary About DOL Request for Information on SECURE 2.0 Reporting and Disclosure (PDF)

"The RFI includes several questions targeting the paper statement requirement enacted in section 338 of SECURE 2.0.2 These RFI questions contemplate amendments to DOL regulations well beyond the provisions of section 338. Congress' directives to the Secretary of Labor in section 338 are clear, specific, and intentionally limited. This letter is intended to remind DOL of its obligation to comply with the statutory provisions of section 338, as limited by Congress."  MORE >>

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

Mobile Apps Emerge as a Critical Tool for Retirement Plan Providers

"[W]hile improved market performance has helped lift overall satisfaction with retirement plan digital tools, for firms that want to differentiate and increase customer satisfaction -- whether in good markets or bad -- more work needs to be done on the digital front, especially when it comes to mobile apps."  MORE >>

National Tax-Deferred Savings Association [NTSA]

Legislation Would Open the Door for Cannabis Companies to Sponsor Retirement Plans

"[T]he Senate Banking, Housing, and Urban Affairs Committee ... approved the Secure and Fair Enforcement Regulation Banking Act (the SAFER Banking Act, S 2860) to provide protections for federally regulated financial institutions that serve state-sanctioned marijuana businesses. The legislation is now cleared for consideration by the full Senate."  MORE >>

American Retirement Association [ARA]

Benefits in General


ERISA Litigation Is a Hot Mess: Challenges and Potential Reforms

"[In] a series of recent rulings, mostly emanating from the U.S. Court of Appeals for the Sixth Circuit, courts have begun to question why ERISA civil procedure differs from civil procedures applied in all other civil actions heard in the federal courts. This article will outline several of the court-created problems with ERISA litigation and discuss what courts have begun to observe and point out, as well as discuss where this all may be headed."  MORE >>

DeBofsky Law

Employee Benefits Jobs

View job as Product Manager
            for American Trust Retirement

Product Manager

American Trust Retirement

Remote / Butler PA

View job as Product Manager for American Trust Retirement

Selected New Discussions

Form 5500 Filing Cash Basis vs. Accrual Basis

"Generally when we file Form 5500 we do so on an Accrual Basis. I'm taking over two 401(k) plans, where the previous TPA has been filing the Form 5500 on a Cash Basis. I assume there is no issue, one way or the other? Is it better to continue filing them on a Cash Basis, or should we consider switching over to an accrual basis?"

BenefitsLink Message Boards

Enrolling an Owner's Spouse Into 401(k) Plan

"Safe Harbor 401k has the standard one year of service 1000 hours rule. The owner wants to bring their spouse into the plan. The spouse does work for the company but hasn't been on the payroll. Is this permitted? The onwer wants to start the spouse on the roster so that the spouse can max on the deferral side and recieve the SH match as well."

BenefitsLink Message Boards

Reversing a QDRO

"A QDRO was received and approved on a participant's pension (DB) benefit. The order was a separate-interest order (i.e. not a stream-of-payment). It turns out, it never should have been filed, and both parties agree (according to the participant, anyway). The Participant has not begun receiving payments. We don't know yet if the AP has.

  • Assuming she has not begun her benefit, can we simply have them provide an amended QDRO, reversing everything?
    • In the meantime, is it okay practice to lock her benefit until we can get it settled? (I realize this would only be necessary if she thinks she is entitled to the benefit, but we just don't know yet).
  • If she has begun her benefit, is there anything we can do? We can't stop the benefit once it is in place, so the only option I can think of is for him to get a 100% stream-of-payment QDRO on what she is currently receiving.'

BenefitsLink Message Boards

Looking for Good Overview Course for Human Resource Professional New to 401(k) Plans

"I am assisting a new hire for a 401k client (my firm serves as third party administrator). The Plan Sponsor's owner (small company) would like me to train this new employee both with respect to an overview of the IRS, DOL, etc requirements for 401k plans, and also issues that are specific to this plan, which I'm glad to do for the this long time client. I also think it might be beneficial for this employee, to take a course taught by a professional educator, that introduces someone who does not have previous job experience that involved the day to day operation of a 401k plan. Can anyone recommend an online (day-long, for example) course for this employee? Specific websites, company names are appreciated. I've searched my local CPA society offerings and done some basic web searching, and of course I'm aware that that there are hundreds of options for specific issues within the 401k world ('EPCRS update' for example), but I'm not having much luck finding a '401k for beginners' overview course."

BenefitsLink Message Boards

Press Releases

Pontera and Savant Wealth Management Join Forces to Expand Wise Retirement Counsel


Webcasts and Conferences
(Retirement Plans / Executive Compensation)

A Federal Court Decides on the DOL’s ESG Regulation


Faegre Drinker

SECURE 2.0: Updates, Technical Corrections, and What Plan Sponsors Should Do Now



ESOP 2023: What's Hot and Trending

November 1, 2023 WEBINAR

Faegre Drinker

Recordkeeper Intel Helping Navigate SECURE 2.0 with Clients

November 15, 2023 in GA

Pension Education Council of Atlanta [PECA]

Last Issue's Most Popular Items

What to Look for in a Retirement Plan Administrator

Kushner & Company

When a Cybersecurity Issue Occurs, Plan Sponsors Can Spring Into Action

PLANSPONSOR; free registration may be required

Kellogg Faces Lawsuit Over Mortality Tables Used for Pension Benefit Calculations

Pensions & Investments

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

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