News & Analysis as of

Compensation Issues – Revisited

We have completed another retirement plan audit season and have noticed a number of common errors occurring with compensation. I previously discussed these issues in my blog series “Compensation: The Missing Link – Part 1”...more

Insurer Agrees to $140 Million Settlement in ERISA Case Challenging Revenue Sharing Practices

Nationwide Life Insurance Co. has agreed to settle ERISA fiduciary breach claims brought on behalf of a class of retirement plan trustees that purchased annuity contracts and/or services from Nationwide for their plans....more

PBGC Issues Final Regulations Regarding Rollovers from Defined Contribution Plans to Pension Plans

The PBGC has recently initiated efforts to enhance retirement security for Americans by promoting lifetime income options (i.e., annuitized benefits). As part of these efforts, as well as those of the IRS and U.S. Department...more

Employee Benefits Developments - November 2014

Health Care Cost Consideration May Support Age Discrimination Claim. Recently, the U.S. Court of Appeals for the Eighth Circuit overturned a lower court’s summary judgment ruling against a plaintiff’s age discrimination...more

Considerations for Employee Benefit Programs That Benefit Employers and Employees

Employers must compete in the marketplace for talented employees at every level—both in recruitment and retention. It is thus in employers’ best interests to provide employee benefit plans that are attractive to employees and...more

What Is a Prudent Investment? Using Simulation to Evaluate Investment Selections

Under the Employee Retirement Income Security Act (ERISA), plaintiffs may file suit alleging that the selection of certain retirement investments was imprudent. Such litigation occurs after a retirement plan incurs...more

Avoid the next big thing in 401(k) Litigation

ERISA litigators need to eat and once they exhausted much of the fee litigation prior to the implementation of fee disclosure, they needed something else to sink their teeth in. Then we got cases regarding using the wrong...more

Reasonable Fee Issues for Fiduciaries on the Horizon

The Supreme Court is poised to address whether fiduciaries' decisions—especially in using fee sharing arrangements—are subject to deference when challenged. The Eighth and Ninth Circuit courts recently decided these issues,...more

Read the 5500 before E-Filing It.

Now is the time that plan sponsors who are on extension to file their Form 5500 should be receiving them via email from their third party administrator (TPA). While plan sponsors just immediately file them to get it...more

For Pension Plans – To Risk or to De-Risk: That is the Question!

U.S. private-sector retirement plans are voluntary in nature. There is no legal requirement that employers adopt or contribute to retirement plans in addition to the social security system. However, once established,...more

Tales of a Former TPA Attorney

I was very lucky that when I started as an ERISA attorney in 1998, I worked as a staff attorney for third party administrators (TPAs) because it gave me insight and experience that I could never have gotten as an attorney...more

Contingent Workers . . . From An ERISA Perspective

The Issue: Companies often divide their workers into a variety of categories . . . agency employees, temporary employees, provisional employees, independent contractors, and so on. Unfortunately, many companies believe that...more

ERISA Applied to Deferred Compensation Plan

Last month, the U.S. Court of Appeals for the Fifth Circuit found in Tolbert v. RBC Capital Markets that a nonqualified deferred compensation plan was an "employee pension benefit plan" under the Employee Retirement Income...more

Retirement Plan Professionals That Plan Sponsors Should Avoid

In the Nelson Algren novel, A Walk on The Wild Side, there are 3 important rules of life to follow: “Never play cards with a man called Doc. Never eat at a place called Mom’s. Never sleep with a woman whose troubles are worse...more

Proactive Steps Retirement Plan Sponsors Should Take

Retirement plan sponsors have a lot of headaches and liability because of their role as plan fiduciaries. They can sit back and do nothing, thereby increasing their potential liability. They can also be proactive and take...more

IRS Finalizes Guidance on Rev. Rul. 81-100 Group Trusts, and Insurance Company Separate Accounts

In Rev. Rul. 2014-24, scheduled for publication on September 8, 2014, the Internal Revenue Service (the Service) substantially completed its pending guidance on Rev. Rul. 81-100 group trusts by permanently authorizing the...more

How Good the Advisor is often based on how well they play with other plan providers

What makes a good retirement plan financial advisor? Well it takes an attention to detail, an understanding of what the role to entails, and a dedication to the client. In addition, what I find is the way a good financial...more

Fourth Circuit Adopts More Demanding Test for Exercise of Objective Prudence by Retirement Plan Fiduciaries -Tatum v. RJR Pension...

In the latest ruling in a long-running battle arising from company stock fund divestments, the U. S. Court of Appeals for the Fourth Circuit has underscored the importance of procedural prudence in the management of plan...more

Religious Institutions: August 2014

If the Internal Revenue Service (IRS) had a moratorium on enforcing §501(c)(3) electioneering restrictions against churches and religious organizations, the IRS states that it has been lifted incident to the settlement and...more

Update For Retirement Plans Post-Windsor

Now that some of the dust has settled on the U.S. Supreme Court’s decision in U.S. v. Windsor, employers who haven’t done so already should take immediate steps to review their retirement plan documents and administrative...more

Combination Bonus and Deferral Plan Subject to ERISA

The Fifth Circuit Court of Appeals held that a deferred compensation plan through which key employees received annual bonuses and were able to defer both bonuses and other income was an “employee pension benefit plan”...more

PBGC Coverage May No Longer Apply to Puerto Rico-Only Qualified Retirement Plans

Employers that sponsor defined benefit qualified retirement plans benefiting only Puerto Rico employees should be aware that Pension Benefit Guaranty Corporation (PBGC) coverage may no longer apply. Last year, the PBGC...more

Advisors Advantage - August 2014

Dealing with adversity. It's about how you deal with it. I'm a huge Aerosmith fan since high school and it's because the music resonates with me because it reminds me of the experiences that I have gone through...more

Plan Sponsor Should Avoid These Retirement Plan Provider “Con Games”

The George Clooney-Brad Pitt trilogy of heist films known as Ocean’s Eleven, Ocean’s Twelve, and Ocean’s Thirteen were remembered for their twist endings, stylish pacing, and lightheartedness. Since the Ocean gang were...more

U.S. Supreme Court Abolishes the Presumption of Prudence in ERISA Stock Drop Cases

A recurring scenario in ERISA litigation involves claims against fiduciaries of 401(k) retirement plans who are alleged to have breached their fiduciary duty by failing to discontinue investment in employer stock following a...more

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