Andrew Oringer on Retirement Plan

In Which Direction Does Hughes v. Northwestern Take the ERISA Analysis of 401(k)/403(b) Investment Menus?

On January 24, 2022, the U.S. Supreme Court unanimously ruled in Hughes v. Northwestern University that establishing and offering a broad range of investment options for a participant-directed retirement plan does not ensure...more

1/26/2022 / 401k , 403(b) Plans , Duty of Prudence , Employee Benefits , Employee Retirement Income Security Act (ERISA) , Fiduciary Duty , Financial Services Industry , Hughes v. Northwestern University , Investment Management , Plan Participants , Retirement Plan , Tibble v Edison Int

The Pendulum Swings – Department of Labor Changes Its Tone for Private Equity Under 401(k) Plans

Last week, the U.S. Department of Labor (the "DOL") on December 21, 2021 issued a supplement (the “2021 Supplement”) to a June 2020 Information Letter (the "2020 Information Letter") that had addressed the possible use of...more

12/28/2021 / 401k , Compensation & Benefits , Department of Labor (DOL) , Employee Benefits , Employee Retirement Income Security Act (ERISA) , Fiduciary Duty , Financial Products , Information Letters , Investment , Investment Management , Private Equity , Retirement Plan

More ESGcitement From the DOL – New Proposed Investment/Proxy ERISA Regulations

The U.S. Department of Labor (the “DOL”) on October 14, 2021, released a new Proposed Regulation (the “Proposed Regulation”) generally relating to the prudence and loyalty duties under the fiduciary rules of the Employee...more

11/15/2021 / Corporate Social Responsibility , Department of Labor (DOL) , Employee Benefits , Employee Retirement Income Security Act (ERISA) , Environmental Social & Governance (ESG) , Fiduciary Duty , Investment Management , Proposed Regulation , Proxy Voting Guidelines , Retirement Plan

Employee Retirement Income CYBERSecurity – DOL Issues New Cyber Authority Under ERISA

Cybercrime increased exponentially in 2020 and into 2021, starting with the disruption caused by COVID-19 and the migration to a work from home environment. Phishing emails were up 35 times and ransom attacks were up 150...more

4/26/2021 / Benefit Plan Sponsors , Cyber Threats , Cybersecurity , Data Protection , Department of Labor (DOL) , Employee Benefits , Employee Retirement Income Security Act (ERISA) , Popular , Retirement Plan

Will ERISA’s Fiduciary Exemption “Rollover” to the New Administration? DOL Issues Year-End Package Relating to “Investment...

Overview The U.S. Department of Labor (the “DOL”) on December 15, 2020 issued a release (the “Release”) finalizing Prohibited Transaction Class Exemption (“PTCE”) 2020-2 (the “Final Exemption”) for retirement accounts...more

1/20/2021 / Best Interest Standard , Biden Administration , Conflicts of Interest , Department of Labor (DOL) , Employee Benefits , Employee Retirement Income Security Act (ERISA) , Fiduciary Duty , Fiduciary Rule , Investment Adviser , Investment Management , Regulation BI , Regulatory Reform , Retirement Plan , Rollover Equity

Employee Benefits and Health Insurance Provisions Are Injected Into New COVID-Relief Legislation

The Consolidated Appropriations Act, 2021 (the “Act”) was signed by the President on December 27, 2020, to provide additional COVID-related relief. The Act has a number of provisions that are relevant to retirement plans...more

12/30/2020 / CARES Act , Consolidated Appropriations Act (CAA) , Employee Benefits , Health and Welfare Plans , Health Insurance , New Legislation , Qualified Disaster Relief Payments , Retirement Plan , Surprise Medical Bills , Tax Qualified Plans

ERISA’s Fiduciary Saga Continues — DOL Issues Final Exemption with New Commentary

Last week, the U.S. Department of Labor (the “DOL”) on December 15, 2020 issued a release (the “Release”) finalizing an important new initiative for retirement accounts (“Plans”) that are subject to the Employee Retirement...more

12/22/2020 / Department of Labor (DOL) , Employee Benefits , Employee Retirement Income Security Act (ERISA) , Fiduciary Duty , Investment Adviser , Investment Management , Regulatory Reform , Retirement Plan

A Look at the Current State of ERISA Class Action Litigation

This OnPoint is the first in a series that will examine important trends and developments in class action litigation under the Employee Retirement Income Security Act of 1974 (ERISA). Here, we look at the current litigation...more

11/20/2020 / Article III , Breach of Duty , Class Action , Corporate Counsel , Employee Benefits , Employee Retirement Income Security Act (ERISA) , ESOP , Fiduciary Duty , FIfth Third Bancorp v Dudenhoeffer , Intel Corp. Investment Policy Committee v. Sulyma , Investment Management , Retirement Plan , Standing , Stock Drop Litigation , Thole v U.S. Bank

An ESGplanation of ERISA's New Regulation on Social Investing

The U.S. Department of Labor (the “DOL”) on October 30, 2020 released a final regulation (the “Final Regulation”) relating to the consideration of non-pecuniary factors by fiduciaries of employee benefit plans (“Plans”) that...more

11/13/2020 / 401k , Department of Labor (DOL) , Employee Benefits , Employee Retirement Income Security Act (ERISA) , Environmental Social & Governance (ESG) , Fiduciary , Fiduciary Duty , Investment , Investment Management , Retirement Plan

Once in a Lifetime? -- The DOL Issues Interim Final Rules on Lifetime Income

The U.S. Department of Labor (“DOL”) on August 18, 2020, issued an interim final regulation (the “Regulation”) requiring the inclusion of lifetime income illustrations in the benefit statements provided to participants in...more

9/20/2020 / 401k , Benefit Plan Sponsors , Comment Period , Defined Contribution Plans , Department of Labor (DOL) , Employee Benefits , Employee Retirement Income Security Act (ERISA) , Fiduciary , Interim Rule , Lifetime Income Disclosures , Limited Liability , Request For Information , Retirement Plan , SECURE Act

What Did the DOL Just “Rollover” (and Roll Out)? – “A Primary Basis” for Understanding the New Proposed ERISA Exemption and...

The U.S. Department of Labor (the “DOL”) on June 29, 2020 issued a release (the “Release”) proposing an important new initiative for retirement accounts (“Plans”) that are subject to the Employee Retirement Income Security...more

IRS Continues to CARE(S) – Releases Notices on Required Minimum Distributions and Safe Harbor Contributions

The Internal Revenue Service released Notice 2020-51 on June 23, 2020, which provides additional Coronavirus related guidance relating to the waiver of 2020 required minimum distributions (RMDs) under certain defined...more

7/11/2020 / 401k , 403(b) Plans , Benefit Plan Sponsors , CARES Act , Coronavirus/COVID-19 , Highly Compensated Employees , Individual Retirement Account (IRA) , IRS , Popular , Required Minimum Distributions , Retirement Plan , Safe Harbors , SECURE Act

For Whom the Bell Thole(s) – Supreme Court Holds that Fiduciaries Under ERISA-Covered Pension Plans May Be Constitutionally...

Last week, the U.S. Supreme Court ruled on June 1, 2020 in Thole v. U.S. Bank that a participant in a defined benefit (“DB”) plan is constitutionally barred from bringing a fiduciary-breach (or similar) claim under the...more

6/11/2020 / Article III , Breach of Duty , Defined Benefit Plans , Duty of Loyalty , Duty of Prudence , Employee Benefits , Employee Retirement Income Security Act (ERISA) , Fiduciary Duty , Injury-in-Fact , Investment Adviser , Mismanagement , Pensions , Plan Participants , Retirement Plan , SCOTUS , Standing , Thole v U.S. Bank

Targeting Private Equity: DOL Confirms that There Is No Bar to the Use of Private Equity in 401(k) "Target Date" Funds

The U.S. Department of Labor (the "DOL") this week, on June 4, 2020, issued an Information Letter (the "Letter") regarding the use of private equity ("PE") investments in investment options offered under participant-directed...more

6/5/2020 / 401k , Department of Labor (DOL) , Employee Benefits , Employee Retirement Income Security Act (ERISA) , Fiduciary Duty , Information Letters , Investment , Investment Management , Private Equity , Retirement Plan

ERISA’s Social Goals? ESG Considerations Under ERISA

A substantial portion of available global investment capital is held under private U.S. pension and other employee benefit plans governed by the Employee Retirement Income Security Act of 1974 (“ERISA”). At the same time, for...more

5/16/2020 / Corporate Social Responsibility , Department of Labor (DOL) , Employee Benefits , Employee Retirement Income Security Act (ERISA) , Environmental Social & Governance (ESG) , Fiduciary Duty , Field Assistance Bulletins , Investment Management , Political Parties , Retirement Plan , Trump Administration

Congress Formulates Retirement-Related and Executive Compensation Provisions for the COVID-19 Stimulus Bill

The Senate yesterday, March 25, 2020, passed by a vote of 96-0 the stimulus bill known as the Coronavirus Aid, Relief and Economic Security Act (the “Act”), which awaits the President's signature. It has been reported that...more

3/26/2020 / CARES Act , Defined Benefit Plans , Employee Benefits , Executive Compensation , Pensions , Retirement , Retirement Plan , TARP

"Actual" Actually Means Actual - U.S. Supreme Court Rules in Sulyma on ERISA's Statute of Limitations

Under Section 413(2) of the Employee Retirement Income Security Act of 1974 (“ERISA”), ERISA’s three-year statute of limitations for fiduciary breaches and certain other violations starts to run when “the plaintiff had actual...more

3/6/2020 / Actual or Constructive Knowledge , Appeals , Breach of Duty , Employee Retirement Income Security Act (ERISA) , Fiduciary Duty , Intel Corp. Investment Policy Committee v. Sulyma , Material Disclosures , Question of Fact , Reaffirmation , Retirement Plan , Retirement Plan Beneficiaries , Reversal , SCOTUS , Split of Authority , Statute of Limitations , Summary Judgment

Three Strikes and You’re in – Supreme Court to Hear Three ERISA Cases in Upcoming Term

The upcoming term of the U.S. Supreme Court is shaping up to be a busy one with respect to cases arising under the Employee Retirement Income Security Act of 1974 (“ERISA”). There have been other terms with multiple ERISA...more

Reducing Administrative Hardship – IRS Releases Final Regulations Relating to Hardship Distributions for Section 401(k) Plans

The Internal Revenue Service (the “IRS”) issued final regulations, effective September 23, 2019 (the “Final Regulations”), that modify the hardship distribution rules for plans established under Section 401(k) of the Internal...more

10/4/2019 / 401k , Benefit Plan Sponsors , Bipartisan Budget Act , Final Rules , Hardship Distributions , Internal Revenue Code (IRC) , IRS , Pension Protection Act of 2006 , Retirement Plan , Retirement Plan Providers , Tax Cuts and Jobs Act

Ding Dong - The Amended Fiduciary Rule Is (Almost) Dead

Fiduciary rule, we hardly knew ya. The death knell for the DOL’s amended rule appears to be sounding this week with the expected mandate from the Fifth Circuit effectuating the vacatur of the amended rule in the case of...more

5/9/2018 / Amended Rules , Best Interest Contract Exemptions , Broker-Dealer , Chamber of Commerce , Collateralized Loan Obligations , Department of Labor (DOL) , Employee Retirement Income Security Act (ERISA) , Fiduciary Rule , Investment Adviser , Retirement Plan , Risk Retention , Securities and Exchange Commission (SEC) , Vacated

Focus on ERISA - Tax Reform Includes Benefits and Compensation Provisions

On December 22, 2017, the tax reform bill, informally known as the Tax Cuts and Jobs Act (the “Act”), was signed by President Trump. As we noted in our prior OnPoint (available here) with respect to earlier versions of the...more

ERISA's Fiduciary Rule – Not Dead Yet, Not Dead . . . Ever?

It has been a long and winding road for the amended fiduciary regulation (the "Regulation") of the U.S. Department of Labor (the "DOL") under the Employee Retirement Income Security Act of 1974 ("ERISA"). The highly...more

5/30/2017 / Best Interest Contract Exemptions , Broker-Dealer , Delays , Department of Labor (DOL) , Employee Retirement Income Security Act (ERISA) , Enforcement , Exemptions , Fiduciary Rule , Field Assistance Bulletins , Final Rules , Individual Retirement Account (IRA) , Investment Adviser , Obama Administration , Prohibited Transactions , Retirement Plan , Secretary of Labor , Trump Administration

Andrew Oringer

Dechert LLP

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