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Fiduciary Governance

As the Department of Labor works in court to defend its rule allowing the use of environmental, social and governance (ESG) factors by fiduciaries when selecting plan investments, legislation to restrict the use of ESG has been reintroduced in Congress, albeit with modifications.   Rep. Greg... READ MORE
Another suit filed against flexPATH by the law firm of Schlichter Bogard, LLP has been dismissed—with prejudice—though it seems to have turned more on good outcomes than prudent processes. This suit (Mills v. Molina Healthcare, Inc., C.D. Cal., No. 2:22-cv-01813, complaint 3/18/22) was filed by... READ MORE
Editor’s Note: This is Part I of a two-part series on a recent report by the Advisory Council on Employee Welfare and Pension Benefit Plans to Acting Secretary of Labor Julie Su.   Recordkeeping today is not your grandfather’s recordkeeping. Maybe not even your older sibling’s. So guidance and... READ MORE
A Georgia Senate Committee has favorably reported a bill that would require a fiduciary of a retirement plan funded wholly or in part by public funds to put the interests of participants and their beneficiaries ahead of “nonpecuniary interests” such as social, political, or ideological concerns. ... READ MORE
The Office of Management and Budget (OMB) received the fiduciary rule, listed as Retirement Security Rule: Definition of an Investment Advice Fiduciary, from the Department of Labor (DOL) on March 8. The OMB will review its costs and benefits within 90 days. However, the compressed two-month... READ MORE
The ink was barely dry on the denial of a motion to dismiss the suit, when American Airlines filed a motion of summary judgment, claiming that “there is no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of law.” Where We’ve Been Participant-plaintiff (... READ MORE
A big plan has struck a big cash settlement in an excessive fee suit involving the use of proprietary investment products in its 401(k) plan. The suit was brought by a number of plaintiff-participants relating to the management of the New York Life Insurance Company Employee Progress-Sharing... READ MORE
A bill currently before the Georgia legislature would affect the exercise of fiduciary duty regarding the investment of retirement plan assets. The legislation includes a provision that would require a fiduciary to put the interests of participants and their beneficiaries ahead of “nonpecuniary... READ MORE
Looks like an American Airlines participant-plaintiff who argued that plan fiduciaries didn’t act in participants’ best interests in including funds managed by firms that allegedly favored ESG interests will get his day in court. Participant-plaintiff (and pilot) Bryan P. Spence filed suit in the... READ MORE
Sometimes the most mundane details can be overlooked—which, for a plan, entails risk. In fulfilling the myriad responsibilities attendant to offering and running a plan, a retirement plan committee can be a great help.  Navigating increasingly complicated benefits administration—and against a... READ MORE
The plan document is not a suggestion; it’s a roadmap to compliance and competent and effective administration. But it’s not always given the regard it deserves—which can imperil a plan and those whom it ultimately was written to serve.  Oops Robert M. Kaplan, Director of Technical Education at... READ MORE
The parties in an excessive fee suit—that also raised issues regarding an arbitration clause—are “…pleased that after years of hard-fought litigation, they are able to present for preliminary approval a proposed settlement.” That settlement includes a cash payment of $4,000,000.00 (four million... READ MORE
Coming slightly more than a month after its first hearing on the Department of Labor’s proposed investment advice fiduciary rule, a second subcommittee of the House of Representatives debated the merits of the proposal, with the battle lines drawn between the two parties.   The Feb. 15 hearing by... READ MORE
A new report offers a new level of transparency on recordkeeping fees paid by the large plan targets of excessive fee suits—and calls out a number of misleading claims and benchmarks used by the plaintiffs’ bar in bringing those suits. According to the announcement from Encore Fiduciary, formerly... READ MORE
A federal judge stands ready to approve an excessive fee settlement proposal—but not the requested attorney fees. The settlement was struck between participant-plaintiffs Brian Reichert and Derek Deviny and Juniper Networks, Inc.—the terms announced roughly a year ago. The suit in question had... READ MORE
Noting that “at some point, there must be some endpoint to this time-consuming and expensive cycle of litigation,” a federal judge has dismissed a 401(k) excessive fee suit. That “expensive cycle” dates back to October 2020 when a suit (Guyes et al. v. Nestle USA Inc. et al.) was brought in the U.... READ MORE
Employer plan sponsors and fiduciaries that are subject to the prohibited transaction rules as set forth in ERISA and the Internal Revenue Code (IRC) will want to take note of new procedures for granting administrative transaction exemptions.  The Department of Labor’s Employee Benefits Security... READ MORE
Often there can be confusion in more ways than one when trying to understand why actuaries report liabilities for defined benefit plans. The reason actuaries report plan liabilities in different manners has to do with the interplay between interest rates, the economy, and the reporting purpose.... READ MORE
Take a helping of government activity. Add a teaspoon each of plan design, controlled groups, and annuities, and also add a dash of EPCRS and a sprinkling of ethics. Voila! The recipe for the ASEA Actuarial Insights conference. The conference will be held on Jan. 24-25.  Wednesday, Jan. 24 On... READ MORE
It’s a big year for the implementation of certain SECURE 2.0 provisions. While many of the items are optional, it represents an excellent opportunity to explain what they mean and their potential impact. “There are two that are the big standouts,” Kevin Gaston said when asked about the provisions... READ MORE

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