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Prof. Norman Stein Calls for End to Conflicts of Interest in Investment Advice

"ERISA says unambiguously that people and firms that give investment advice to people in retirement plans are fiduciaries and that fiduciaries cannot generally have disabling conflicts of interest. This is not a new idea. It has been the law for close to half a century. But in 1975 the [DOL] adopted a regulation that artificially constricted the meaning of investment advice.... Well, the world in 1975 was a very different world than it is today. Steve Jobs was still tinkering in his dad's garage, e-mail meant mail in envelopes, Jennifer Aniston was in first grade, and more pertinent, the 401(k) plan had not yet been invented and only a few thousand individual retirement accounts had been opened."

Testimony to the ERISA Advisory Council: Gaps in Retirement Savings Based on Race, Ethnicity and Gender (PDF)

14 pages. "The first topic is retirement issues faced disproportionately by women ... The second topic is incremental reforms that might close some of the system's gaps in coverage and adequacy.... [T]he third topic is an argument for a different national retirement policy to replace the Rube Goldberg system we are now saddled with, in which enormous tax expenditures are used to reward the savings of the people least likely to need government largesse to incentivize them to save for retirement while preparedness problems of lower and moderate individuals are studied over and over again rather than meaningfully addressed."

Text of Testimony on Behalf of Pension Right Center to ERISA Advisory Council: Outsourcing Employee Benefit Plan Services (PDF)

8 pages. "[There exist] some gaps in the current regulatory framework -- which ... date back to a part of 1975 interpretative bulletins -- that could be filled by new Department of Labor guidance updating those early bulletins. [Of particular concern are] outsourcing arrangements that many people today think eliminate or at least reduce the fiduciary protections that the statute nominally purports to extend to participants. It revisits first regulatory principles for ERISA, which is appropriate as retirement and other employee benefit plans have evolved since ERISA's first decade."

Text of Testimony on Behalf of Pension Right Center to ERISA Advisory Council: Issues and Considerations Around Facilitating Lifetime Plan Participation (PDF)

"[1] Why do plan participants withdraw money? ... [2] Factors that Participants Should Consider in Deciding Whether to Rollover ... [3] Employer Attitudes Toward Plan Withdrawals ... [4] Steps employers can take to discourage pre-retirement consumption of plan assets and to encourage good financial decision making in deciding between a rollover or keeping assets in a plan (without incurring potential fiduciary exposure) ... [5] Possible Department of Labor Actions."

An Article of Faith: The Gratuity Theory of Pensions and Faux Church Plans

"This article ... concludes that the IRS position is inconsistent with the statute's unambiguous text and that the legislative history establishes that the 1980 amendments [to ERISA's definition of 'church plan'] were designed only [1] to allow plans established by churches to continue to cover employees of church-affiliated agencies and [2] to clarify that a church plan did not lose its status as such if it were maintained by an organization controlled or affiliated with a church whose purpose was to fund or administer the plan.... There are, however, two district court opinions taking the opposite position. At present, it seems possible if not probable that the Supreme Court will have to resolve the issue."

Statement to Senate Hearing on Multiemployer Pension Plans Funding (PDF)

"By taking on some liability now, the PBGC will avoid taking on much larger liabilities later and will improve the future viability of troubled but critically important industries, such as trucking and mining."

The Executive Compensation Threat to Retirement

"This article explores the unresolved ambiguity that has enabled top hat plan metastasis into upper-middle compensation ranges. It documents the sources of the pathologies associated with the expansion of top hat pensions and traces their consequences. And it surveys the leading responses to these developments, some of which offer only partial solutions, while others could be accomplished only by legislation." [Washington University in St. Louis Legal Studies Research Paper No. 21-11-01]