Fiduciary Governance

Exceptions should not be the rule, at least not when it comes to the Department of Labor’s fiduciary regulation reproposal, according to a new white paper from the U.S. Chamber of Commerce.
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In a Feb. 5 letter from Senate Committee on Homeland Security and Government Affairs Chairman Ron Johnson (R-Wisc.) to Secretary of Labor Thomas Perez, the committee requests that the DOL better explain its fiduciary regulation reproposal. READ MORE

The White House memo on the DOL’s proposal to redefine what constitutes a fiduciary continues to engender negative reaction. READ MORE

Remember the importance of 401(k) plan committees, which can exercise their fiduciary responsibility through meetings and quarterly reviews. READ MORE

The Pension Benefit Guaranty Corporation (PBGC) was not arbitrary and capricious when it concluded that Kentucky Bancshares was obliged to comply with the Pension Protection Act and ERISA when it terminated its retirement plan and trust, the 6th Circuit has ruled.
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Funding levels of pension plans sponsored by the S&P 1500 fell by 9 percentage points in 2014, from 88% to 79%. According to Mercer, the plans’ collective deficits more than doubled last year, reaching $504 billion at year-end.
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The 7th U.S. Circuit Court of Appeals has outlined the conditions for determining the existence of a partial plan termination, ruling on the fifth appeal of what it called a “seemingly interminable class action suit.”
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Illinois Attorney General Lisa Madigan (D) is arguing that the Land of Lincoln has “police powers” that allow it to change a contract in extraordinary circumstances, including changes to the state’s public pensions contained in a 2013 pension overhaul.
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The Pension Benefit Guaranty Corporation on Jan. 12 issued a draft of the 2015 premium filing form and instructions. It provides information for plans paying premiums for plan years beginning in 2015, including instructions for all the particular forms of data that must be reported.
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The Department of Labor has announced that on Jan. 15, 2015 it will hold a hearing on whether Credit Suisse affiliates can serve as qualified professional asset managers. READ MORE

Plan administrators were beginning to feel comfortable with their procedures for participant benefit statements, but changes are in the offing. The Department of Labor’s most recent guidance plan includes a proposed regulation that could significantly affect the way plan sponsors draft and distribute these notices. READ MORE

Fiduciaries of an ESOP are not entitled to any special presumption of prudence with regard to purchases or sales of employer securities, except as the duty of prudence relates to diversification of plan investments, the U.S. Supreme Court ruled June 25.  In an ASPPA asap, Ilene Ferenczy of Ferenczy + Paul LLP, offers her insights on this case and what the ruling means.  READ MORE

Funds held in inherited IRAs are not retirement funds and must be included in a bankruptcy estate, the U.S. Supreme Court ruled June 12. The Court’s 9-0 ruling in Clark v. Rameker, No. 13-299 (U.S. 6/12/14), aff’d 714 F.3d 559 (7th Cir. 2013)) was definitive in drawing a distinction between inherited IRAs and retirement funds, and between inherited IRAs and other funds to which the Bankruptcy Code’s exemptions apply. The Court’s ruling ended years of ping-pong litigation in which successive courts reversed decisions by lower courts.  READ MORE

The so-called DoL “conflict of interest rule for investment advice” — formerly known as the fiduciary redefinition rule — has been delayed until January 2015. The delay was revealed in a posting of the Office of Management and Budget’s Office of Information and Regulatory Affairs, which notes that a second Notice of Proposed Rulemaking will not be issued until January, but it does not state a specific date.  READ MORE

Some 30 percent percent of small businesses say it is at least somewhat likely they will eliminate their existing retirement plans if the DOL adopts its proposed, expanded definition of a fiduciary, according to a study by Greenwald & Associates released May 14. READ MORE

Speaking at a Washington legislative update meeting on May 5, Assistant Labor Secretary for the Employee Benefits Security Administration Phyllis Borzi said that while there is no set date for issuing the rule that will redefine fiduciary, she will not wait forever. Most insiders predict that the rule will not be released before the congressional elections in November. READ MORE

Reacting to a forensic investigation initiated by state employees, North Carolina’s $87 billion state pension system may be moving from a sole trustee to a board soon. As reported in P&I, a panel convened by State Treasurer Janet Cowell (D) is recommending the change amid allegations set forth in a forensic investigation commissioned by the State Employees’ Association of North Carolina. READ MORE

The IRS can do more to identify improper deductions for contributions the self-employed make to their simplified employee pension plan retirement accounts. And it could bring in $71 million over five years if it does, says the Treasury Inspector General for Tax Administration in a recently released report.