Fiduciary Governance

Protect Against a Retirement Plan Cybersecurity Breach or Else: DOL

By John Sullivan 10/2/2023

October is cybersecurity month, “something that pairs nicely with Oktoberfest,” American Retirement Association CEO Brian Graff joked during a panel called “Fulfilling Cybersecurity Oversight Requirements” at the ERISA 403(b) Conference in Washington, D.C. on Oct. 2. It was a moment of levity in... READ MORE

Federal Judge Bounces 401(k) Excessive Fee Case

By Nevin E. Adams, JD 9/29/2023

Another federal judge has weighed the assertions made in an excessive fee suit—and found them lacking both in terms of a “meaningful benchmark,” and specificity of the claims made. The Suit The plaintiffs here—Jennifer R. Lard, John G. Juergens, Gerald L. Robinson, Scott W. Anderson, Thomas A.... READ MORE

Flexibility on the Use of Forfeitures—Not so Fast!!

By Robert Richter 9/28/2023

Many (if not most) defined contribution plan documents provide that the plan administrator may use forfeitures to reduce contributions, pay plan expenses, or allocate to participants as additional benefits. In fact, the Treasury and IRS recently suggested that plans be drafted this way to avoid... READ MORE

A(nother) Federal Court Backs ‘Meaningful Benchmark’ Standard in 401(k) Excessive Fee Suit

By Nevin E. Adams, JD 9/26/2023

Plaintiffs have had their appeal of a district court’s dismissal of their excessive fee suit rejected by the appellate court. Appellants Cole Matney and Paul Watts[1]—participants in the Barrick Gold 401(k) plan—filed suit against Barrick Gold of North America, Inc., Barrick Gold’s Board of... READ MORE

Mistakes to Avoid in Plan Administration

By John Iekel 9/26/2023

Of course, laws and regulations, as well as fiduciary duty, spell responsibilities that must be fulfilled. But sometimes what one does not do is as important as what one does, an industry expert reminds. It is helpful to not only know what to do but also what to avoid, argues Mark Olsen, Managing... READ MORE

Plaintiffs Get Past Motion to Dismiss in BlackRock TDF Suit

By Nevin E. Adams, JD 9/22/2023

The plaintiffs in one of the dozen or so cases involving the BlackRock Lifepath target-date funds (TDFs) have made it past the motion to dismiss stage. In this case (Trauernicht et al. v. Genworth Financial Inc. et al., case number 3:22-cv-00532, in the U.S. District Court for the Eastern District... READ MORE

Meeting the Fiduciary Risk Plan Fees Pose

By John Iekel 9/18/2023

The importance of plan fees has been impossible to miss in recent years—just look at court dockets, if nothing else. And those plan fees can pose a challenge in fulfilling fiduciary duties. Protecting 401(k) and 403 (b) participants from paying excessive fees is part of plan sponsors’ fiduciary... READ MORE

Industry Groups ‘Friend’ Fiduciaries in Excessive Fee Suit Fray

By Nevin E. Adams, JD 9/15/2023

Noting that “a decision in this appeal has the potential to significantly affect Amici’s members, which include plan sponsors and fiduciaries…,” a group of industry trade groups has filed in support of fiduciaries and providers in a federal court. More specifically, the ERISA Industry Committee (... READ MORE

New Fiduciary Rule Sent to OMB by Department of Labor

By ASPPA Net Staff 9/11/2023

The Department of Labor (DOL) sent a new version of a proposed fiduciary rule to the Office of Management and Budget (OMB) late Sept. 8 for review. Known officially as “Conflict of Interest in Investment Advice,” it would redefine fiduciary investment advice under ERISA. According to a post on... READ MORE

Plaintiffs Land Excessive Fee Settlement with Cruise Line

By Nevin E. Adams, JD 9/8/2023

Less than a year after being sued for the standard series of alleged missteps, the parties in an excessive fee suit have struck a “deal.” The plaintiff bringing suit just a year ago was Grace Angelo (she was later joined in the action by Kerstin Thompson as a second class representative)—the... READ MORE

Key Lawmakers Call on DOL to Ditch Further Fiduciary Rulemaking

By Ted Godbout 9/6/2023

The two top Republican lawmakers serving on the House and Senate committees with jurisdiction over ERISA have called on the Department of Labor (DOL) to halt any further changes to the definition of fiduciary. The Aug. 31 letter from Rep. Virginia Foxx (R-NC), who is chair of the House Education... READ MORE

Another Excessive Fee Suit Settlement Struck

By Nevin E. Adams, JD 9/6/2023

The allegations are familiar, as are the attorneys representing the plaintiffs—but this settlement proposal involves more than just money. The proposed settlement comes in an action brought by plaintiffs Sarah Gamble, David Covington, Tansy Wilkerson, and Daisy Santiago (represented by Miller Shah... READ MORE

Fiduciary Duty a Factor in Pension Risk Transfers

By John Iekel 8/30/2023

Pension risk transfers (PRTs) are, at their core, financial transactions. But there are other important factors to keep in mind when contemplating and conducting a PRT—among them, fiduciary responsibility. With PRTs heating up lately, a discussion of how fiduciary duty factors in may be timely... READ MORE

New York Life Clients Latest Victims of Massive MOVEit Data Breach

By John Sullivan 8/29/2023

Almost 26,000 New York Life customers had their names and Social Security numbers exposed to a data breach, the latest in a massive hack that affected hundreds of companies and millions of Americans. The hack occurred in late May and involved Progress Software, the provider of MOVEit transfer... READ MORE

What’s Behind the PRT Heat?

By John Iekel 8/25/2023

Pension risk transfers (PRT) hit record levels in the second quarter of 2023, and have been high all year. Some industry analysts suggest what may be behind that heat wave. Annuities and Funding Levels. Annuity purchase interest rates, as well as improved pension plan funded status, help explain... READ MORE

Plaintiff Finds an Open Ear—and Gets a Trial Date—in Excessive Fee Suit

By Nevin E. Adams, JD 8/18/2023

Despite “uncertain” claims regarding alleged fiduciary breaches, “thin” methodology, and opinions that bordered on “conclusory,” a federal judge has denied the plan fiduciaries’ motion to dismiss—and set a trial date in an excessive fee suit. The defendants are the fiduciaries of Genentech’s $7... READ MORE

Appellate Court Takes Away AT&T Win in Excessive Fee Suit

By Nevin E. Adams, JD 8/11/2023

It’s not the first time out for these plaintiffs (Julio C. Alas, Robert J. Bugielski, and Chad S. Simecek), though it is their first win. They lost twice already at the district court level—once in September 2021 and again back in 2018. (when they had been accorded a chance to “fix” their... READ MORE

Are Plan Sponsors Winning More Fiduciary Breach Dismissal Motions?

By John Sullivan 8/11/2023

Is the litigation tide turning in favor of plan sponsors? That’s a growing perception but one contradicted by data, at least when it comes to dismissal motions. Fiduciary liability insurance provider Euclid Fiduciary found that, as of the end of July, plan sponsors “are only winning approximately... READ MORE

DOL Seeks Info on SECURE 2.0 ERISA Reporting and Disclosure Mandates

By John Iekel 8/11/2023

The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued a request for information (RFI) on SECURE 2.0 mandates related to ERISA’s reporting and disclosure provisions. Several sections of SECURE 2.0 establish new, or revise existing, ERISA reporting and disclosure... READ MORE

Bill Blocks Pensions, Endowments from Investing in ‘Techno-Totalitarian’ China

By John Sullivan 8/9/2023

Is it ESG for me but not for thee? Republicans heavily criticized environmental, social, and governance (ESG) investing policies in recent months, arguing it does little more than serve a woke agenda at the expense of investment returns. For instance, they say divestment from fossil fuels... READ MORE

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