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About This Blog

Bloomberg BNA's Pension & Benefits Blog is a special resource offered by Bloomberg BNA to provide commentary and insight on news and trends reported in our publications: Pension & Benefits Daily, Pension & Benefits Reporter, and the Benefits Practice Resource Center. The authors of the blog are members of our Benefits Practice Resource Advisory Board and members of staff (who contribute summaries of some of their recent stories). 

The ideas presented here are those of individuals, and Bloomberg BNA bears no responsibility for the appropriateness or accuracy of the communications between group members. We reserve the right not to post comments that are abusive or otherwise objectionable.

Communications regarding the Pension & Benefits Blog may be directed to Dana Domone via e-mail to ddomone@bna.com.

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Category : Pensions and Retirement


July 16, 2014

Church Plan Challengers Win 3rd Victory; Magistrate Agrees With Majority Position

A Catholic health-care corporation's pension plan doesn't qualify as a church plan exempt from federal benefits law, a magistrate judge concluded (Medina v. Catholic Health Initiatives, D. Colo., No. 1:13-cv-01249-REB-KLM, 7/9/14).         

July 9, 2014

Treasury, IRS Modify Tax Code Rules To Expand Access to Retirement Annuities

The federal government helped broaden the choices for those shopping for lifetime income options in retirement by modifying the required minimum distribution rules for various types of plans in newly released final regulations on qualifying longevity annuity contracts.   

July 2, 2014

High Court Kills Presumption of Prudence, Gives Some Hope to ESOP Fiduciaries

In a partial win for employees who invest in company stock, a unanimous U.S. Supreme Court ruled that fiduciaries of employee stock ownership plans aren't entitled to a presumption of prudence protecting them from liability for declining share price.

June 25, 2014

Senate Sets Sight on Retiree Benefit Vesting; ERISA Amendments Create New Presumption

In what some may see as an effort to preempt U.S. Supreme Court review of the topic in next year's term, the Senate is considering amendments to federal benefits and labor laws that would make any retiree group health benefits vest upon retirement or the completion of 20 years of service.         In what some may see as an effort to preempt U.S. Supreme Court review of the topic in next year's term, the Senate is considering amendments to federal benefits and labor laws that would make any retiree group health benefits vest upon retirement or the completion of 20 years of service.   

June 18, 2014

ERISA Accounts Useful for Paying Expenses In Plans, but Have Some Risks, Attorneys Say

ERISA budget accounts are useful tools for managing retirement plan expenses, but they come with advantages and risks and therefore require careful monitoring by plan sponsors and record keepers, benefits attorneys told Bloomberg BNA.        

June 11, 2014

IRAs May Be ‘Hot Button Issue' In DOL's Re-Proposed Fiduciary Rule

The issues to watch when the Department of Labor re-proposes its fiduciary rule involve individual retirement accounts, a practitioner said during an audiocast sponsored by Drinker Biddle & Reath LLP.  

June 4, 2014

Buyer Beware: Sponsors Should Read Details In Fiduciary Warranties to Dodge ‘Gimmicks'

Employer-sponsored retirement plan fiduciaries should be cautious about signing fiduciary warranties, because some provide far less value than fiduciary insurance and can potentially be a “marketing gimmick,” plan advisers and insurers told Bloomberg BNA in a series of interviews. 

May 29, 2014

MassMutual Is Functional Fiduciary; Ability To Remove Funds Doesn't Confer Status

Mass Mutual Life Insurance Co. is a functional fiduciary of two Section 401(k) plans because of its ability to set its own compensation as a service provider, but not because of its authority to substitute funds from the plans' investment lineups, a federal court concluded.

May 21, 2014

Internal Controls, Good Communications Key To Reducing Plan Errors, Consultant Says

Retirement plan sponsors need to have internal controls and good communications between all relevant departments to reduce typical problems that would prompt an investigation from the Internal Revenue Service that could lead to disqualifying their plans, a consultant said at the American Institute of CPAs employee benefits conference.   

May 7, 2014

DOL Continues Work on Fiduciary Rules, Guide for Fee Disclosures, Official Says

The Department of Labor is still gathering input and information to develop the highly anticipated reproposed rules that define a “fiduciary,” said Phyllis Borzi, assistant secretary for the Department of Labor's Employee Benefits Security Administration.

April 30, 2014

IRS Developing PLRs on Lump-Sum Offers, Practitioner Says in Webinar on De-Risking

The Internal Revenue Service is working on additional private letter rulings that cover lump-sum offers to retirees who are receiving pension benefits, a practitioner said during a webinar on such plan de-risking methods.   

April 25, 2014

Plan Administrators Face Beneficiary Hurdles After IRS Windsor Guidance, Attorneys Say

Retirement plan sponsors should check beneficiary designations for participants' same-sex spouses in light of recent Treasury Department and Internal Revenue Service guidance on the applicability of the U.S. Supreme Court's Windsor decision to retirement plans, if they haven't already done so, benefits attorneys told Bloomberg BNA. 

April 16, 2014

IRS Windsor Retroactivity Guidance Leaves Questions on ERISA Claims, Practitioners Say

But what about the retroactive application of Windsor to claims for benefits under the Employee Retirement Income Security Act?

April 9, 2014

Retirement Plans Aren't Required to Apply Windsor Ruling Retroactively, IRS Says

Many plan sponsors and administrators got the news they were looking for on the application of the U.S. Supreme Court's Windsor decision to retirement plans: No retroactive application before the date of the high court ruling itself. 

April 4, 2014

Attorneys Make Predictions on Fee Litigation, Questions of Constitutional Standing

Plan fee litigation, questions of constitutional standing and the fate of the pro-fiduciary presumption of prudence are the big issues currently driving fiduciary litigation under the Employee Retirement Income Security Act, practitioners said during a webcast.

April 4, 2014

A Possible Alternative to the Moench-ies (Part II)

So we've now had the oral argument before the Supreme Court in the potentially critical Dudenhoeffer case (Fifth Third Bancorp v. Dudenhoeffer, U.S., No. 12-751, argued 4/2/14).

April 2, 2014

Battle Over Presumption of Prudence Heats Up Ahead of High Court Arguments

The question of whether a judge-made presumption of prudence should protect fiduciaries of employer stock plans from liability for declining stock prices will be front and center at the U.S. Supreme Court next week, with the court receiving nine amicus briefs in the months leading up to oral arguments. 

March 27, 2014

States, Cities Tackle Pension Liabilities; Watch Illinois, Detroit for Lessons

Throughout his first four years in office, Illinois Gov. Pat Quinn (D) gave a consistent stump speech--a pledge to overhaul the worst-funded public sector retirement system in the country.  

March 19, 2014

Borzi Plays ‘Three Questions' With Critics Of DOL's Expected Fiduciary Rule Re-Proposal

Phyllis C. Borzi, assistant secretary for the Department of Labor's Employee Benefits Security Administration, doesn't have 21 questions for people who doubt whether the agency's expected re-proposed fiduciary regulations are necessary. She has only three.

March 12, 2014

Speakers Say Liability Can Be Minimized When Giving Participants Investment Advice

Pension plan trustees can offer participants much-needed individual investment advice in their participant-directed accounts without undue fear of liability, speakers said during a conference.

March 7, 2014

Obama Budget Includes MyRAs, Auto IRAs, Would Limit Retirement Savings Tax Breaks

President Barack Obama's proposed $3.9 trillion fiscal year 2015 budget includes requirements that employers offer individual retirement accounts and provisions that would reduce tax benefits on certain retirement accounts for high-income earners.

February 12, 2014

EBSA to Focus on Conflict-of-Interest Rule, Prohibited Persons, Audits, Borzi Says

 The civil enforcement efforts of the Department of Labor's Employee Benefits Security Administration achieved nearly $1.7 billion in monetary results during the 2013 fiscal year, Phyllis C. Borzi, assistant secretary of labor for EBSA, told conference attendees at a Feb. 7 presentation.

February 5, 2014

Lump-Sum Payments Focus of Debate Over De-Risking Strategies, Attorney Says

Plan sponsors' use of lump-sum payments to settle pension obligations for retirees in pay status has emerged as the leading issue in the debate over pension de-risking, an employee benefits attorney said during a recent conference session.

January 30, 2014

Plan Sponsor De-Risking Likely to Continue Even With Higher Funding, Practitioners Say

  The recent upswing in defined benefit plan funding levels might encourage plan sponsors to take some major steps to de-risk their plans.  

January 23, 2014

Year in Review: 2013 in ERISA Litigation

Several U.S. Supreme Court rulings broke new ground for employee benefits in 2013, and decisions in 2014 are also expected to push these issues into new territory. In addition to its landmark ruling recognizing same-sex marriage under federal law, the U.S. Supreme Court also issued two significant opinions under the Employee Retirement Income Security Act in 2013—one involving contractual limitations periods, and the other involving Section 502(a)(3)'s equitable remedies provision. 

January 15, 2014

Class-Action Complaint Challenges Fidelity Plan's Revenue-Sharing Arrangement

  A recently filed class action complaint alleges that Fidelity Investments committed fiduciary breach and engaged in prohibited transactions with respect to its own profit sharing plan by failing to “recapture” certain revenue-sharing payments made by the plan's mutual fund adviser to the plan's record keeper, both of which are Fidelity entities (Yeaw v. FMR LLC, D. Mass., No. 1:14-cv-10035, complaint filed 1/7/14).

January 10, 2014

D.C. Circuit: No Relief for Participant In Underfunded Cash Balance Plan

An attorney challenging the amount of benefits she received from her former law firm's underfunded cash balance plan failed to convince the U.S. Court of Appeals for the D.C. Circuit that a district court erred in rejecting her claims of fiduciary breach and violations of the tax code (Clark v. Feder Semo &  Bard, P.C., D.C. Cir., No. 12-7092, 1/7/14).       

January 7, 2014

Under Deferential Review, Second Circuit Again Nixes Xerox's Use of Phantom Account

Xerox Corp.'s use of a phantom account in calculating and offsetting its employees' pension benefits was unreasonable under the terms of the plan and violated the notice requirements of the Employee Retirement Income Security Act, the U.S. Court of Appeals for the Second Circuit ruled (Frommert v. Conkright, 2d Cir., No. 12-67-cv, 12/23/13).

December 13, 2013

Guidance on Frozen Plans, DOMA Out ‘Imminently,' Treasury Official Says

The retirement plan community can expect guidance imminently on issues related to frozen defined benefit plans, a Treasury Department official said during a webcast.        

December 4, 2013

DOL Lists Fiduciary Re-Proposal, Project On Brokerage Windows on Regulatory Agenda

The Department of Labor's Employee Benefits Security Administration projected that its rule on the redefinition of the term “fiduciary,” also known as its conflict-of-interest rule, will be re-proposed in August 2014, and also indicated its intentions to start on a project related to brokerage windows, according to the DOL's fall 2013 regulatory agenda.          

December 2, 2013

Solicitor General Asks High Court to Strike Pro-Fiduciary Presumption of Prudence

The U.S. Supreme Court should strike down the pro-fiduciary presumption of prudence that some federal courts have used to shield fiduciaries of employer stock plans from liability for declining share value, the U.S. solicitor general said in a brief filed with the high court.

November 8, 2013

IRS Not Out to Trap Employers That Make Plan Adjustments Post-Windsor, Official Says

The Internal Revenue Service and Treasury Department expect to get guidance out to cafeteria plans “very, very soon” on the retroactive application of the Supreme Court's Windsor decision, a Treasury official said.

October 30, 2013

DOL Guidance on Same-Sex Spouses Mirrors IRS's, but Practitioners See Some Divergence

Department of Labor guidance providing that the terms “spouse” and “marriage” under the Employee Retirement Income Security Act now include same-sex legally married couples was a confirmation of earlier Internal Revenue Service guidance, but some issues remain on the health and welfare plan side that could lead to legal action down the line, practitioners told Bloomberg BNA in a series of interviews.     

October 16, 2013

High Court Hears Arguments on Accrual Of Limitations Periods in ERISA Plans

In considering the date on which a disability plan's contractual limitations period begins to run, the U.S. Supreme Court justices questioned attorneys on a wide range of issues, including federal law preemption, equitable doctrines, potential harm and the purpose of the Employee Retirement Income Security Act's administrative exhaustion requirement.

October 11, 2013

DOL Investigators Quiz Plan Sponsors On Training of Fiduciaries, Attorneys Say

  The Department of Labor is looking into fiduciary training as part of the agency's investigations into retirement plans, attorneys at Trucker Huss in San Francisco told Bloomberg BNA.The attorneys had taken part in a recent webinar on the basics of retirement plan committees, and later Bloomberg BNA asked them to share some of their real-life experiences relating to fiduciary training under the Employee Retirement Income Security Act.  

October 1, 2013

Should Employers Pay or Play? Podcast by Littler Mendelson Attorneys Steven Friedman and Ilyse Schuman

Podcast (stream or download) by Steven Friedman and Ilyse Schuman: On Oct. 1, the Affordable Care Act marketplaces open for business. Then, starting in 2015, employers have a choice of whether to “pay or play,”-- to provide health care coverage or pay a penalty.

September 25, 2013

ERISA Advisory Council to Recommend Updated Guidance On Finding Lost, Missing Plan Participants

The Department of Labor's ERISA Advisory Council intends to recommend that the department update current guidance related to locating lost or missing retirement plan participants, based on teleconference discussions held by the panel Sept. 23.

September 18, 2013

Fiduciary Rule May Not Appear Until Spring, 408(b)(2) Guide Out Soon, Attorneys Say

DOL's fiduciary rule re-proposal may be out as late as spring 2014; Section 408(b)(2) summary/road map proposed rules should be out in late September, or early October.  

February 24, 2012

Long Forgotten Rapid Trading Fees Rise Again in New Ways

SEC Chairman Mary Schapiro recently announced that the SEC is looking to curb high-frequency trading in stocks, a practice commonly referred to as day trading. The SEC previously attempted to address market timing or rapid trading in mutual funds when it issued amendments to rule 22c-2 in 2006. Rule 22c-2 permitted mutual funds to impose redemption fees for rapid trading or to stop rapid trades. While this rule has been in place for some time, plans may want to consider verifying how the record keepers for their plans and the mutual funds in their participant directed investment account plan are monitoring and complying with the restrictions imposed by the mutual funds and what redemption fees the mutual funds might impose for a violation not stopped by the record keeper or custodian of the funds. 

August 16, 2011

What does the new accounting standard on 'fair value' mean to ERISA fiduciaries?

The DOL’s recent proposed class exemption for the provision of investment advice has re-ignited the debate over the need for and the role of investment advice in participant directed plans. The proposal would strike a good balance between the need to offer investment advice to plan participants and the importance of participant safeguards.

June 27, 2011

What Does Amara CIGNA-fy?

Is CIGNA v. Amara (50 EBC 2569), the recent ERISA case from the U.S. Supreme Court, a major development? Notwithstanding the lack of surprise in the final result, the Court's rationale looks to be extremely important.

April 20, 2011

New Regulations Likely to Impede Hybrid Plans

The contraction of defined benefit plans over the last 20 or so years has been dramatic and disappointing for those of us who believe that such plans are the best vehicle for providing retirement security. Some of the decline can be based on changes to the economy, the emergence of new companies and the decline of others, global competition, funding and financial reporting volatility, and other macro and micro economic factors.

April 14, 2011

Recent 7th Circuit Decision for Defined Contribution Plan Fiduciaries to Watch

The U.S. Seventh Circuit Court of Appeals issued its opinion in George v. Kraft Foods Global Inc. earlier this week impacting fiduciaries to defined contribution retirement plans such as 401(k) plans and other defined contribution plans (see 70 PBD, 4/12/11).

February 3, 2011

Cash Value Insurance and Benefit Programs – When Will It Stop?

Professionals and small business owners are often confronted with sales pitches on how they can put away large sums for retirement, get around the nondiscrimination rules and usually get a current deduction for amounts expended.

January 20, 2011

2010 Pension Relief Legislation Clarified For Multiemployer Plans (Finally)

On June 25, 2010, after more than a year of delay due largely to the legislative gridlock so enjoyed by the last Congress, legislation popularly referred to as the Pension Relief Act of 2010 (HR 3962) was signed into law.

January 13, 2011

Target Date Funds - What's In a Name?

Many investors lack financial literacy. Others simply do not have (or want) to take the time to manage their accounts. One answer -- target date funds (TDF). Pick your retirement date, and forget it. Someone else will manage the plan for you.

October 18, 2010

The Revolution Will Not Be Televised: Reading the New DOL Fee Regulation

The existence of a fiduciary duty to disclose information pertinent to plan investments, including employer stock, is again in the news. But the lead has been buried in a regulation that focuses attention on information about fees charged by typical 401(k) plan pooled investments.

October 2, 2010

Digesting Recent Stock-Drop Analyses - A Possible Alternative to the Moench-ies

With all the cases and articles swirling around the question of when there is a fiduciary duty to stop acquiring or to dispose of employer securities, and the recent oral arguments on the point before the Second Circuit, I'd like to set out a possible analytical framework, as follows:

October 1, 2010

The Collapse of Employee Retirement Income Security?

If you stand back from the intricate legal and economic details of this year’s events and try to grasp what’s really happening to retirement security over the long run, it’s frightening.

May 25, 2010

Hardt Times

The Supreme Court's decision in Hardt v. Reliance Standard should have been a reason to celebrate for participants and their lawyers (99 PBD, 5/25/10). The simple holding, that you don't have to be a prevailing party before a court can exercise its discretion to grant attorney's fees is unexceptionable. Their were no dissents. But the court seemed to be at pains to tie the decision to its facts. The participant was granted benefits by the plan on the remand. Did that matter?

May 5, 2010

ERISA Attorney Fees: An Unadulterated Rant on Conkright and Hardt

Heart of my Hardt. I love that mel-o-dy.

April 26, 2010

Conkright v. Frommert: The Justices Make Mistakes

"People make mistakes." Hand it to the Chief Justice, he's got an ear for a catch phrase. As BNA summarized the holding: "Employee Retirement Income Security Act plan administrators will not be stripped of deferential review by federal courts when they make a "single honest mistake" in administering and interpreting plans...." ( Conkright v. Frommert, U.S., No. 08-810, 4/21/10).

April 8, 2010

The Fiduciary Decision to Choose the ERISA Plan Auditor

Since many ERISA plans are in the process of preparing their audited financials for the 2009 Form 5500, this is a good time to to reflect on the nature and responsibilities that the plan administrator has in connection with the audit process. (As chair of the Audit Subcommittee for the committee that is the plan sponsor and plan administrator of the Goodyear Retiree VEBA, I had to think through these issues for our plan.)

April 2, 2010

Some Musings on Funding Relief

Congress has been considering extending funding relief to sponsors of defined benefit plans.There has been controversy about the conditions under which a sponsor will be eligible for relief.

March 1, 2010

Advisable Advice Regulations

Today's decision on the merits by the 9th Circuit in the Golden Gate Restaurant Association v. San Francisco case upholding the employer spending requirements of the San Francisco ordinance as not preempted by ERISA is a most interesting read.

December 1, 2009

Auto-Pilot Retirement - Ready for Takeoff?

In late October, the Government Accountability Office released a report on auto-pilot retirement practices and proposals. The report reviews data on 401(k) plans that have adopted automatic enrollment, and discusses the Obama administration’s budget proposal to mandate payroll deduction IRAs for firms with ten or more employees that lack other plan coverage.

November 20, 2009

Thanksgiving Feast or Famine? - DOL Withdraws its Investment-Advice Regulation

The DOL has withdrawn its investment-advice regulation, culminating a process that began with a firestorm of objection regarding the DOL's attempt to implement the PPA's new investment-advice exemptions. The PPA's exemptions were controversial when passed, and became more controversial when the Department interpreted certain fee-leveling requirements in a manner that was perceived to be narrow.

November 16, 2009

Glass Half Empty or 3/4 Full?

The DOL’s recent proposed class exemption for the provision of investment advice has re-ignited the debate over the need for and the role of investment advice in participant directed plans. The proposal would strike a good balance between the need to offer investment advice to plan participants and the importance of participant safeguards.

September 22, 2009

Participant's access to information in claims adjudications.

One of the purposes of ERISA was to provide participants with access to information so they could understand their rights and obtain their benefits from their plans.

July 6, 2009

How to Restart the Pension System By Giving Executives a Stake In It

In 1973, just before ERISA, we worried about individual workers losing their defined benefits because of insufficient funding, no plan termination guarantees, and little or no vesting.  Most of us did not worry about the whole system falling apart.   There were just too many disappointed expectations under the previous system.

June 2, 2009

A Modest Proposal Regarding Same-Sex Marriage

It is not being controversial to say that there is a trend in the states in favor of permitting same-sex marriage.  Previously, a broad array of employers had begun provide benefits for their employees' domestic partners.  See generally Libert, Oringer & Raskin, "Same-Sex Marriage and Employee Benefits: The Approaching Revolution," 63 Empl. Ben. Plan Rev. 22.

January 29, 2009

Are Certain Reactions to the Investment-Advice Regulations Ill-Advised?

On January 16, 2009, the Department of Labor announced that it had finalized its work under Sections 408(b)(14) and 408(g) of ERISA, which set forth the PPA's new investment-advice exemptions.

December 12, 2008

Automakers' Insolvency Opens All the Benefit Cutback Targets and Problems

The insolvency (whether or not in Chapter 11 reorganization) of the three automakers brings “legacy costs” back to the center stage of ERISA cutback negotiation and litigation.

October 28, 2008

Election and Retirement Security

The election is now only days away and will occur within the context of a financial markets meltdown. The effect on retirement security has been significant. Public policy considerations must be addressed asap.

October 2, 2008

Investment Advice—ERISA’s Culture War

The DOL’s recent proposed class exemption for the provision of investment advice has re-ignited the debate over the need for and the role of investment advice in participant directed plans. The proposal would strike a good balance between the need to offer investment advice to plan participants and the importance of participant safeguards.

September 8, 2008

Looking Back, Looking Forward

While December is when most of us look back on the year coming to end and make plans and resolutions for the year about to begin, September is another one of those times for me. After all, it’s an important month in its own right—the start of the academic year (even if classes now begin in August), the official beginning of the race in election years like this one, the unofficial end of summer with Labor Day and lest we forget, the anniversary of ERISA’s passage.

September 2, 2008

Good Planning or Pension Manipulation?

A front page article in the August 4th edition of the Wall Street Journal outlines a method by which companies are transferring portions of their non-qualified deferred compensation obligations of senior executives into their qualified plans.

August 15, 2008

A Report on Yet Another Reporting Issue for Private Equity and Other Investment Funds

Section 404(a)(1) of ERISA generally requires a fiduciary to act in the interest of participants and beneficiaries and to act prudently. ERISA also requires, under Section 103(b)(3)(A), an annual report which includes a financial statement containing, among other things, a statement of assets and liabilities "valued at their current value." Current value is to be determined in good faith by a trustee or named fiduciary.

September 18, 2006

PPA Tidbits

On the ABA Joint Committee on Employee Benefits teleconference last Thursday, Bill Bortz from Treasury cleared up some issues that have been creating uncertainty under the newly-enacted Pension Protection Act of 2006.