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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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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 26, 2014

Guidance on ACA 90-Day Waiting Periods Issued in Tri-Agency Final, Proposed Rules

Group health plans or health insurance issuers offering group health insurance coverage can't apply a waiting period that exceeds 90 days for individuals to be eligible for benefits coverage under terms of their plans, according to new final regulations under the Affordable Care Act and released jointly by three federal agencies.          

February 19, 2014

Plan Fee Litigation Burned Hot in 2013, But Some Decisions Baffling, Speakers Say

Plan fee litigation had a big year in 2013, with divisive appellate court decisions affecting standards of judicial review, statutes of limitations and functional fiduciary status that may open the door for increased and novel litigation, employee benefits attorneys said during a conference panel presentation.

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 27, 2013

IRS, DOL, HHS Propose to Expand Types of Excepted Benefits Under ACA

The Departments of Treasury, Labor, and Health and Human Services issued proposed rules (REG-143172-13; RIN 1210-AB60; CMS-9946-P) that would amend the regulations on excepted benefits regarding vision and dental benefits, as well as employee assistance programs.   

December 20, 2013

IRS Issues Guidance on Application Of Windsor Decision on FSAs, HSAs

Cafeteria plans can permit midyear election changes for plan participants who were legally married to same-sex spouses as of June 26, the date of the U.S. Supreme Court's decision in United States v. Windsor, the Internal Revenue Service said in Notice 2014–1, issued Dec. 16.

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 21, 2013

Fourth Circuit: No Deferential Review Despite Plan's ‘Satisfactory to Us' Language

Language in a Prudential Insurance Co. of America disability policy requiring claimants to submit proof of disability that is “satisfactory to Prudential” didn't constitute an unambiguous grant of discretionary authority that would entitle Prudential to deferential judicial review of an adverse benefit determination, the U.S. Court of Appeals for the Fourth Circuit ruled.  

November 13, 2013

Treasury Tackling Final Issues Under the ACA, Agency Official Says

  The Treasury Department is hammering out final issues with Affordable Care Act compliance, from employer reporting requirements to health insurer fees, and should have some guidance out soon, Treasury's benefits tax counsel said.

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 23, 2013

HRA Guidance Tied Employers' Hands, Has Some Re-Examining Plans, Attorneys Say

Employers hoping to offer health reimbursement arrangements to employees to give them money to spend on the Affordable Care Act health insurance marketplaces have found their hands tied following guidance issued Sept. 13 by the Internal Revenue Service and the Department of Labor, attorneys said during a session of the Groom Law Group's Employee Benefits Seminar.

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.  

September 10, 2013

Guidance Provides Administrative Relief On Spousal Benefit Issues, Practitioners Say

The guidance in Revenue Ruling 2013-17 will trigger major changes in beneficiary status by requiring spousal consent where none was required before, a benefits attorney said concerning a Treasury Department and Internal Revenue Service ruling issued Aug. 29.

August 22, 2013

Groups Say Lifetime Income Guidance Should Be Flexible, Provide Protections

Any guidance promulgated by the Department of Labor's Employee Benefits Security Administration on lifetime income illustrations should be optional for retirement plans and provide fiduciary...

August 12, 2013

S.D.N.Y.: Cash Balance Plan Violates ERISA With Service-Based Normal Retirement Age

PricewaterhouseCoopers LLP cannot shake claims by participants in its cash balance plan that the plan's service-based normal retirement age violates the Employee Retirement Income Security Act,...

July 26, 2013

First Circuit Holds Private Equity Fund Liable for Employer's Withdrawal

Two private equity funds that held a combined 100 percent stake in an employer that withdrew from a multiemployer pension plan can be liable for the employer's withdrawal liability, the U.S....

July 18, 2013

Pension Advocates Raise Questions About IRS Rulings on Church Plan Status

In the m on ths since the Internal Revenue Service lifted a moratorium in 2011 on issuing private letter rulings on church plan s, IRS has issued at least 13 rulings granting church plan...

July 2, 2013

DOMA Decision to Have Pervasive Impact on Plan Administration, Practitioners Say

The U.S. Supreme Court decision striking down a key part of the Defense of Marriage Act expanded employee benefit rights and provided administrative relief for employee benefit managers in...

June 10, 2013

ERISA Advisory Council Roundup

MISSING PARTICIPANTS/LOST PLANS Pension specialists recommended June 4 that the Department of Labor's Employee Benefits Security Administration develop a lost-plan registry to help...

May 14, 2013

IRS to Focus on Safe Harbor 401(k) Plans, Other Concerns Highlighted in Questionnaire

The Internal Revenue Service has identified an increasing number of small employers that maintain multiple tax-qualified retirement plans, an arrangement that is not a violation of tax code...

May 6, 2013

FASB Issues Exposure Draft on ESOP Disclosures; Comment Period Open

FASB Accounting Standard Update (ASU) 2011-04, Fair Value Measurement (Topic 820): Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRSs , ...

April 19, 2013

IRS Makes Employers’ Internal Controls a Priority in Employee Plan Audits

For more than a decade, the Internal Revenue Service has been refining its approach to examining tax-qualified retirement plans, most recently by focusing on internal controls, according to BNA...

April 16, 2013

Implications of ASU 2011-4 for sponsors of ESOPs

Conservatism. Consistency. Conformity. These are the big “C’s” of financial reporting. But at a recent conference of employee stock ownership plan (ESOP) sponsors and advisors, another “C” joined...

April 8, 2013

Follow-Up Q&A From EBN Webinar

Here are a few follow-up question from the EBN/Bloomberg BNA webinar titled Behind the Scenes of IRS Employee Plans Enforcement Strategies. To view the archived program, click here . Q: ...

March 12, 2013

Voluntary Corrections of Retirement and Section 403(b) Plan Failures, as Described by IRS Officials

Two officials of IRS Employee Plans have teamed up with Alston & Bird and Bloomberg BNA to share the important details of the Employee Plans Compliance Resolution System that was updated in...

March 4, 2013

Employers Will Have 'Sufficient Lead Time' to Prepare Systems for 4980H, Official Says

The Treasury Department cannot offer employers a timetable for when proposed employer “shared-responsibility” rules under the Affordable Care Act will be finalized, but employers will have...

February 20, 2013

FREE WEB SEMINAR: Behind the Scenes of IRS Employee Plans Enforcement Strategies

Bloomberg BNA is sponsoring a free web seminar Feb. 28 at 2 p.m. ET titled Behind the Scenes of IRS Employee Plans Enforcement Strategies. Don’t let an IRS enforcement action lead to harsh...

February 14, 2013

Proposed Revisions to IRS Circular 230 Set New Standards for 'Reasonable' Practices

Under proposed “reasonableness” standards for Circular 230, employee benefit attorneys who provide written tax advice may not rely on information from benefit plan sponsors if the attorneys know...

February 5, 2013

Treasury, IRS Seek Input on Coming Guidance on Roth Transfers

Whether and, if so, how to apply vesting rules to in-plan Roth transfers are among questions that a working group will try to answer as the Treasury Department and Internal Revenue Service...

January 22, 2013

First Circuit Creates Split; Unwritten Risk-of-Relapse Exclusion Unreasonable

The U.S. Court of Appeals for the First Circuit ruled Jan. 17 that a plan administrator abused its discretion by terminating a participant's long-term disability benefits based on the...

January 7, 2013

Practitioners Say That Revised EPCRS Streamlines Process Has No Big Surprises

The Internal Revenue Service released Dec. 31 the long-awaited revised revenue procedure updating the Employee Plans Compliance Resolution System. The big deal is the new process for...

December 28, 2012

IBM Moves to Reduce Costs by Changing Timing of 401(k) Match: Are Others Likely to Follow?

IBM's recent announcement that, starting in 2013, it will make matching and automatic nonelective contributions to its employees' Section 401(k) plan accounts only once annually at the end of each...

December 12, 2012

Benefit Groups Tailor Policy Agendas To Congressional Lame-Duck Session

Retirement benefits are front and center on the policy agendas of employee benefit groups as Congress and President Obama negotiate a deal to solve the nation's fiscal crisis during the final...

December 10, 2012

Fiduciary Rule Re-Proposal Still 'Months and Months' Away, Borzi Says

Phyllis C. Borzi, assistant secretary of labor for the Employee Benefits Security Administration, said DOL plans to re-propose the fiduciary rule, but the department still has “a lot more work to...

November 29, 2012

PBGC Provides Some Relief for Plan Sponsors in its Enforcement of ERISA Section 4062(e)

Since ERISA was first enacted in 1974, it has included a provision, Section 4062(e), that generally applies when the cessation of operations at a facility results in separation from employment of...

November 28, 2012

Hostess Brands Is Latest Case Highlighting Funding Challenges of Multiemployer Plans

Recent efforts by Hostess Brands Inc. to use bankruptcy to discharge withdrawal liabilities totaling nearly $2 billion highlight a persistent and serious problem for multiemployer plans,...

November 27, 2012

Employer Not Entitled to Restitution of $548K in Overpaid Contributions

An employer is not entitled to restitution of $548,257 it mistakenly overpaid to multiemployer health and pension funds, the U.S. Court of Appeals for the Eighth Circuit ruled Nov. 23 ( ...

November 15, 2012

The Modern ESOP and Fair Market Value After the End of Tax Cuts

This blog entry is a summary of a white paper prepared for BNA by Keith Butcher, John Kober, and Jason C. Ray and adapted from a BNA Insight. The white paper is available at butcherjoseph.com . ...

November 9, 2012

Did the PBGC Egregiously Aggregate? - Yes, Says a U.S. District Court

Private-equity and similar funds sometimes invest in portfolio companies that may have significant liabilities under ERISA and the corresponding provisions of the Internal Revenue Code.   A...

November 2, 2012

De-Risking Focuses on Business Issues; Retirement Security a Concern, Critics Say

After Ford Motor Co. and General Motors Co. announced earlier this year that they would offer some retired and former employees a one-time opportunity to take lump-sum distributions, pension...

October 11, 2012

MEPs Need to Comply With Toughest Rules When Regulations Overlap, Speaker Says

Multiple employer plans, when facing overlapping requirements from the Department of Labor and the Internal Revenue Service, should comply with the more stringent rules, a speaker said during...

October 9, 2012

Fifth Circuit Affirms ERISA Preemption Ruling in En Banc Rehearing

Following an en banc review, the U.S. Court of Appeals for the Fifth Circuit Oct. 5 reinstated a 2011 decision in which it held that the Employee Retirement Income Security Act does not...

October 4, 2012

Court Holds That Wisconsin FMLA Substitution Law Is ERISA-Preempted

The U.S. District Court for the Southern District of Ohio ruled Sept. 28 that the Employee Retirement Income Security Act preempts the Wisconsin Family and Medical Leave Act's (WFMLA)...

September 28, 2012

Joint Fund Provides No Individual Benefits, Thus Not ERISA-Covered Plan, DOL Says

A fund administered by a joint labor-management board of trustees but providing no benefits to individual participants or beneficiaries is not an employee welfare benefit plan under Section 3(1) of...

August 14, 2012

Investment Primer for 401(k) Plan Fiduciaries: Understanding the Merits Of Portfolio Diversification in the Context of Participant Disclosure

As Section 401(k) plan fiduciaries take steps to comply with new Labor Department participant disclosure regulations, they need to understand and explain to participants the purpose and merits...

July 11, 2012

GASB’s New Pensions Brings Weight of Education

Will the new pension accounting standards--to be publicly available in August by the Governmental Accounting Standards Board-- spur a new round of debate as a result of the new accounting measures...

June 18, 2012

ERISA Advisory Council Roundup: Beneficiary Designation Safe Harbor

Practitioners encouraged the Department of Labor June 14 to adopt a safe harbor standard that offers liability protection to plan fiduciaries with respect to beneficiary determinations. Witnesses...

June 15, 2012

ERISA Advisory Council Meeting Roundup: Annuities

Witnesses urged the Department of Labor June 13 to facilitate the use of annuities as lifetime income options at an ERISA Advisory Council meeting on examining income replacement for retirees...

June 14, 2012

ERISA Advisory Council Roundup: Disability Benefits in DC Plans

Witnesses pushed for defined contribution plans to incorporate qualified disability benefits June 12 at an ERISA Advisory Council meeting on the interaction between disability and security in...

May 16, 2012

DOL Emailing Form 5500 Filers to Raise Awareness About Schedule C

Scott C. Albert, chief of the reporting and compliance division at the Department of Labor's Employee Benefits Security Administration, said recently that DOL is sending emails to Form 5500...

April 25, 2012

Which employees are considered full-time for purposes of the health care reform employer mandate?

The Internal Revenue Service, Department of Labor, and Department of Health and Human Services have issued a series guidance that summarizes their intended direction in implementing the employer shared responsibility requirement and related Patient Protection and Affordable Care Act requirements.  Most recently, IRS Notice 2012-17 and DOL Technical Release 2012-01 address the PPACA employer shared responsibility requirement, automatic enrollment requirement, and waiting period limitation in a series of "frequently asked" questions and answers.

March 21, 2012

Summary of Benefit Coverage Rules – The Devil is in the Details

During the February 28, 2012 ALI-ABA Video Broadcast program on Health Plans some representatives from the government provided us with their personal insights on how the Summary of Benefits and Coverage (“SBC”) rules and templates should operate. Earlier this week the DoL posted FAQ VIII on its ACA website regarding the SBC that provided additional flexibility for employers.  This is just a highlight of some of the important information learned during such program and from FAQ VIII.  

February 29, 2012

DOL Initiatives: Questions Answered

Editor's Note: Last month, advisory board member Sherwin Kaplan and his colleague at Nixon Peabody, Eric Paley, conducted a webinar titled "Managing and Protecting Your Employee Benefit Plans: New Department of Labor Initiatives."  As part of that webinar, Sherwin and Eric took questions from the audience, but they were unable to get to every question in the time allocated for the program.  Sherwin--a former co-chair of the Bloomberg BNA Pension & Benefits Publications Advisory Board--agreed to answer outstanding questions here on the blog.

February 24, 2012

Welcome to the New Bloomberg BNA Pension & Benefits Blog

This week we officially relaunch the Bloomberg BNA Pension & Benefits Blog. Now on a new platform, the blog is more attractive and easier to use, yet it continues to contain insight, commentary, and analysis from the well-respected Bloomberg BNA Pension & Benefits Advisory Board.  

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.