Joe Urwitz, Todd Solomon and Chris Nemeth discuss provisions of The Employee Retirement Income Security Act of 1974 (ERISA) of particular relevance to tax-exempt entities and their investment managers, as well as ongoing litigation against Section 403(b) plans.
Todd A. Solomon is the head of McDermott’s Benefits, Compensation & Employment Practice Group. Todd focuses his practice on designing, amending and administrating pension, profit sharing, 401(k), employee stock ownership and 403(b) plans, as well as nonqualified deferred compensation arrangements. He also counsels privately and publicly held corporations and tax-exempt entities regarding fiduciary issues under the Employee Retirement Income Security Act (ERISA), employee benefits issues involved in corporate transactions, executive compensation matters and the implementation of benefit programs for domestic partners of employees. Read Todd A. Solomon's full bio.
At the 36th Annual ISCEBS Symposium, Todd Solomon presented best practices for plan fiduciaries to avoid 401(k) plan and 403(b) plan class action lawsuits. Todd discussed fiduciary responsibilities under ERISA as well as potential consequences of breaching fiduciary responsibilities. He highlighted notable cases brought against plan fiduciaries, including those that allege excess plan fees. Todd discussed the need for rigorous monitoring and documentation of the review process.
Since the announcement by the Internal Revenue Service (IRS) that sponsors of individually designed retirement plans may no longer receive a periodic determination letter, plan sponsors have faced uncertainty about how to demonstrate compliance for their retirement plans. Our McDermott Retirement Plan Compliance Program, a new opinion letter and operational review program for individually designed 401(a) and 403(b) retirement plans, will allow plan sponsors to document their plans’ compliance with tax code requirements in response to the curtailment of the IRS’ determination letter program.
On February 28, Todd Solomon and Maureen O’Brien presented a Strafford live webinar, “Private Equity Compliance With ERISA: Navigating Manager Fiduciary Duties for Funds Holding ERISA Plan Assets”. ERISA imposes fiduciary obligations on funds that hold employee benefit plan assets, including private equity managers responsible for investing fund assets. Managing those fiduciary obligations requires knowledge of the ERISA plan asset requirements. In addition, last year’s Sun Capital decision has broad implications for private equity funds and their investors. The ruling subjects funds to joint and several liabilities for the ERISA pension obligations of their portfolio companies. These slides discuss the ERISA fiduciary issues relevant to private equity funds and the implications of the most recent Sun Capital case.
In the presentation “Highlights of Record Retention Requirements Applicable to Employee Benefit Plans,” Todd A. Solomon detailed the general rules of The Employee Retirement Income Security Act of 1974 (ERISA). He discussed several specific record-keeping requirements for employee benefit plans and a number of general requirements that imply a duty to retain records, for example general fiduciary duties, plan distribution requirements, COBRA requirements and qualified medical child support requirements.
On Monday, October 24, Chicago partners Todd Solomon and Brian Tiemann will speak at the Association of Financial Professionals conference in Orlando, Florida. Joined by Kendall Frederick, Senior Manager of Finance Integration at Hanesbrands Inc., the panel will discuss how to use financial planning and analysis analytics to help plan fiduciaries assess the need and potential effectiveness of plan design changes for 401(k) plans, including automatic enrollment and reenrollment strategies. The panel will discuss the analytics considered by Hanesbrands prior to its recent participant reenrollment and introduction of white label funds under its 401(k) plan as a case study.
Conference attendees can join the speakers for this discussion on Monday, October 24 at 8:30 a.m. Eastern in Room W307CD at the Orange County Convention Center, located at 9400 Universal Blvd, Orlando, FL 32819. More information is available here.
The effects of same-sex marriage on employee benefits, companies’ actions to prevent employee discrimination and an evolving focus on benefits with special implications for diverse employees continue to be hot topics in today’s workplace.
The recent wave of 403(b) lawsuits against more than a dozen prominent US universities could herald similar suits for other 403(b) plan sponsors. Plan sponsors can minimize their risk by reviewing their plan governance procedures, investment policy statements, and plan investment lineup and fee structure.
Read the full article here to learn more.
Now that same-sex marriage is legal in all 50 states, most benefits plans will treat same-sex spouses the same as opposite-sex spouses. But several tricky issues remain. For example, what if an employer with religious beliefs wants to continue to exclude same-sex spouses from receiving benefits under its retirement plans? Or its medical and dental plans? Are employers that deny coverage vulnerable to sexual orientation and/or sex discrimination lawsuits under state and local law or to federal Title VII lawsuits? What has the EEOC said about this issue? In addition, should employers consider dropping benefits for unmarried partners? Is the answer different if the employer’s plans cover both same-sex and unmarried opposite-sex partners?
The following presentation highlights some of these considerations.
In the last several months, plaintiffs have filed multiple class action lawsuits against plan sponsors, plan fiduciaries and stable value fund providers. These lawsuits, which have involved 401(k) plans sponsored by large corporations, have alleged that:
- Plan fiduciaries breached their fiduciary duties under the Employee Retirement Income Security Act of 1974, as amended (ERISA), by investing in poorly performing stable value funds, failing to monitor the investments during periods of poor performance and high fees, and improperly benchmarking stable value funds against other lower cost and higher yielding investment options; and
- Stable value fund providers violated their fiduciary duties under ERISA by offering imprudent, low-yielding investments and charging inappropriately high fees.
These lawsuits have also included allegations that plan fiduciaries breached their fiduciary duties of loyalty and prudence under ERISA by:
- Causing plans to pay unreasonably high investment management fees when compared to available lower-cost alternatives such as institutional share classes, collective trusts and separate accounts; and
- Failing to monitor the asset-based and other fees charged by plan record keepers (revenue sharing) to account for economies of scale. Some complaints have alleged that adequate monitoring should include a periodic competitive bidding process.
Plan sponsors and plan fiduciaries face a particularly difficult bind with respect to the offering of a stable value investment option as, ironically, they have been challenged for offering stable value funds and equally fornot offering them. For example, in addition to the stable value fund allegations described above, plaintiffs have sued some plans for failing to offer stable value funds, because money market funds—a fixed income investment alternative—have produced historically low returns. In fact, such lawsuits note that most large 401(k) plans offer stable value funds and criticize plan sponsors for their failure to conform.
As a result of this wave of lawsuits, plan sponsors and plan fiduciaries should evaluate the process they use to decide to invest in stable value funds, as well as the process they use to monitor investment management and recordkeeping fees more generally. Plan sponsors and plan fiduciaries must carefully select expert investment advisers and understand the expert’s advice before applying it. Plan fiduciaries that do not currently offer a stable value investment option should examine their fund lineups to ensure that the lineups provide an adequate fixed income investment at a reasonable cost to plan participants.
In addition, plan sponsors and plan fiduciaries should establish and maintain an investment policy, which they should use to rigorously monitor investment options and related fees. Plan fiduciaries should also document the process for making fiduciary decisions and be able to demonstrate that they considered quality, service and price in selecting and monitoring investment options. This documentation of the investment selection and monitoring process is crucial to defending against the recent onslaught of stable value fund and other related lawsuits.