Experts in Personalized Retirement Plan Design & Administration Newsletter 06.06.12

Shifting Investment Responsibility in 401k Plans Target-date funds are transforming the 401k retirement plan landscape, with adoption rising steadily over the past decade. This TDF growth signals an important development in the nature of investment decision-making within 401k plans. Through the TDF mechanism, responsibility for investment decision-making is shifting back to the employer. Source: Vanguard

Should We Scrap the 401k System and Start Over? Demos, a progressive think tank, argues that even in best-case scenarios, fees take an enormous bite from retirement nest eggs. The report kicked off immediate blow-back from the industry, which criticized its methodology. Robert Hiltonsmith, a Demos policy analyst who wrote the report, argues that we need to re-think the entire approach to financing retirement. Source: Reuters

PODCAST: Is the 401k Working? Is the 401k working as a retirement plan for the American public? Millions of Americans are barreling toward 65-plus with very little in the sugar bowl. A conversation with Teresa Ghilarducci and David Wray. Source:

Annuities on the Rise in 401k Plans Fear of a market downturn right before retirement is leading to record sales of annuities with income guarantees. With these products, you invest in mutual funds but are promised a minimum income stream every year in retirement for life, even if the market falls. But most workers don’t have this option in their 401k plans. They generally have to use money in a taxable account or an IRA to buy these annuities. That’s beginning to change, though. Source: Reuters

Apple Transitioning to ETF-Only Retirement Plan Apple transitioning to ETF-only retirement plan; given the company’s influence and scope, and ETFs’ low fees and favorable track record regarding returns, other retirement plan sponsors may be tempted follow the tech giant’s lead – if they can overcome obstacles from lagging administrative and technological supports. Source: Employee Benefit News

Pressed for Cash? Switching Jobs? Don’t Touch That Retirement Fund People are also tempted to cash out of their 401k’s when they are leaving or changing jobs, rather than rolling them into a 401k at a new job or another qualified retirement account. Turning to a 401k in order to meet an immediate financial need has negative short-term and long-term repercussions for financial planning. Source: Conrad Siegel

Maintaining Plan Beneficiary Information What is the employer’s responsibility for maintaining plan beneficiary information? In reviewing the employer requirements and responsibilities under ERISA as it relates to the employer’s duties for maintaining beneficiary information, most of the statutory provisions relate to the employer’s fiduciary responsibility to follow the plan’s requirements and manage the plans in accordance with those requirements and ERISA rules. Source:

Does Guaranteed Income Really Make Sense as a 401k Option? If we are to believe the results of recent surveys, 401k investors currently have an overwhelming preference for guaranteed income investment options rather than traditional growth options. But, despite their popularity in polls and the imprimatur of government regulators, do fixed income investments really make sense for young workers investing for their retirement? Source:

I Can’t Find My Spouse: QJSA Waivers for Disappearing Spouses Plans with qualified joint and survivor annuity options (“QJSAs”) can be faced with a dilemma when a participant is seeking a distribution in a form other than as a QJSA without spousal consent and the participant also asserts they cannot get that consent because their spouse has “disappeared.” If the spouse refuses to consent, then there is no distribution. But what if they really have no idea where their spouse is? Source: Fox Rothschild LLP

Target-Date Funds Are Too Complicated The average investor using a target-date retirement fund didn’t pick the fund because of its “glide path” or the asset allocation it will have when they reach retirement age. They picked the fund — or allowed their employer to use it as a default choice for them — because it was in the company’s retirement plan and offered the promise of keeping the investment process simple. Source:

Fiduciary Related Items

In a Tizzy Over Tussey? How Not to Act As a Plan Fiduciary Compliance with the DOL’s new disclosure regulations ought to arm a plan’s fiduciaries with the information that they need to know about what the plan is paying its service providers – both directly and indirectly. But is that enough? No. This article reviews several additional actions. Source: Chang, Ruthenberg & Long PC

The 408(b)(2) Fiduciary Conundrums: Defining, Implementing, and Monitoring Your 401k Plan’s Value Proposition The new 408(b)(2) fee regulations require 401k fiduciaries to make sure that the vendors’ fees are “reasonable.” Unfortunately, the term “reasonable” is not defined. So, what does it mean for a fee to be reasonable? Source:

How Do 401k Annuity Options Increase Plan Sponsor Fiduciary Liability? Until 401k plan sponsors can guarantee each and every employee can receive expert investment advice, it’s their fiduciary duty to help prevent employees from making poor investment decisions with their retirement investments, including the purchase of an annuity. Source:

How Retirement Plan Sponsors Can Avoid Turning 2012 Into Their Apocalypse This article is intended to serve as a guide for plan sponsors on how to survive 2012 and beyond as this year places added burdens and responsibilities to plan sponsors. Source: Rosenbaum Law Firm PC

403(b) Plans

SPARK Institute Releases Multivendor 403(b) Plan Participant Disclosure Information Form The SPARK Institute has created an “Investment Provider Information Form for Multivendor 403(b) Plan Participant Disclosure” that will help facilitate compliance with the Department of Labor’s participant disclosure regulations by investment providers and recordkeepers serving 403(b) plans with multiple vendors. Source:

Combination of ERISA-Exempt 403(b) Plan With Qualified Plan The Department of Labor has issued an Advisory Opinion dealing with a tax-exempt organization which provides a deferral-only 403(b) plan and makes matching contributions to a qualified money purchase pension plan. The opinion rules that the 403(b) plan is subject to ERISA. Source: Sungard/Relius

Some Items of Interest to Advisors

The Final 408(b)(2) Regulation: Impact on Broker-Dealers This article is a talk with ERISA attorney Fred Reish about the retirement plan issues on the agenda in Washington, DC, and how they might be affected by the upcoming elections. Source: PIMCO

The Final 408(b)(2) Regulation: Impact on Broker-Dealers This is the third in Drinker Biddle’s series of bulletins on the impact of the Department of Labor Final Regulation on service provider disclosures under ERISA Section 408(b)(2). In this bulletin they discuss the impact of those changes on broker-dealers. Authored by Fred Reish, Bruce Ashton and Summer Conley. Source: Drinker Biddle & Reath LLP

Why Brokers Are Giving RIAs a Cut of Their 401k Action It has long been the case that the Morningstars and Financial Engines of the world made money as fiduciaries — but now smaller RIA firms may get in on the act by offering a level of flexibility, customization and cachet that their small broker counterparts are comfortable with. Source:

Insights: Studies, Research and White Papers

Biased Analysis Maligns 401k Plans This is a statement from Brian H. Graff, CEO and Executive Director of The American Society of Pension Professionals & Actuaries in response to Demos report, “The Retirement Savings Drain: Hidden & Excessive Costs of 401k’s.” Source: ASPPA

The Retirement Drain: The Hidden and Excessive Costs of 401k’s An median-income, two-earner household will pay nearly $155,000 over the course of their lifetime in 401k fees, according to a new analysis by national public policy center Demos. “The Retirement Drain: The Hidden and Excessive Costs of 401k’s” details how the nation’s shift in retirement policy toward individual retirement accounts has made savers vulnerable to losing almost one-third of their investment returns to a complex, inefficient market. Source:

2012 Northern California 401k Plan Survey Report This report presents the findings of Mohler, Nixon & Williams’ 2012 Northern California 401k Plan Survey. The survey offers a regional perspective of 401k plans, and recent trends. The survey was conducted in March 2012, with over 100 Northern California plan sponsors and benefit plan managers participating. The respondents were asked about their current plan offerings and structure, and recent and expected changes. Source: Mohler, Nixon & Williams (Free Registration May Be Required)

Costly 401k Fees Are a Puzzle to Both Workers and Employers If you think your employer knows more about your 401k plan’s fees than you do, think again. Sponsors of some 401k plans don’t understand the fees they’re paying toward plan administration, says a new report by the U.S. Government Accountability Office. The GAO reported on one case, in fact, where a relatively large plan underestimated its recordkeeping costs by $58,000. Source:

Four Countries With Better 401k Plans Than the United States The United States isn’t the only country that encourages workers to use retirement accounts to save for the future. Some other countries provide retirement accounts similar to 401k’s that offer clearer disclosures, simpler investments, and lower costs than most retirement plans in the United States. A recent Government Accountability Office report recommends that the Labor Department examine retirement accounts in these four countries for ideas about how to improve retirement accounts here. Source: U.S.News & World Report

Retirement Plan Provider Issues White Paper on “Open” MEPs Multiple employer arrangements offer the potential for economies of scale and efficient, professional fiduciary oversight that might otherwise be unavailable to a small or mid-sized employer. They can be a tremendous source of benefits for American workers, and supporting their formation and operation is sound public policy. Source: Pentegra Retirement Services

Court and Legislative Items

Court Issues $35M Award Against Plan Fiduciaries for Excessive Fees The court found it troublesome that ABB took no action with respect to these fees, even after receiving a report from its benefits consultant, noting that the plan recordkeeping fees paid by ABB’s 401k plans were excessive and appeared to be subsidizing other non-plan-related services that Fidelity provided to ABB. Source: Reed Smith LLP

Regulatory Related Items

How I Survived a DOL 401k Audit With trepidation, I slowly opened the envelope from the Department of Labor hoping that it was only a routine communique. My worst fears were realized when, upon reading it, I discovered that our 401k plan was being audited. Along with the letter was a three-page list of documents DOL had requested and the date representatives from the agency would be coming on site. Gulp! Source: Employee Benefit News

Fee Disclosure Rules Are a Win-Win for Everyone The willingness of an experienced plaintiffs’ ERISA counsel to settle for “pocket change” in the Braden vs. Wal-Mart Stores Inc. case and the 7th U.S. Circuit Court of Appeals’ upholding of a lower court’s dismissal of the Loomis vs. Exelon Corp. case must have delighted 401k plan sponsors. Source: Pensions & Investments (Free Registration May Be Required)

Discussion of the DOL’s Participant Fee Disclosure FAQ To a large extent, the Department of Labor’s 38 Q&As on the pending participant fee disclosures, contained in Field Assistance Bulletin (FAB) 2012-02, provide exactly what the retirement community is seeking – clarification and explanation of the new rules for participant fee disclosures that must be provided by August 30. However, the now-notorious FAQ-30 appears to require new disclosures not to be found in the final rule. Source: Plan Sponsor Council of America

Participant Fee Disclosures Under ERISA This is a checklist intended to be used by HR personnel and the plan fiduciaries of a covered individual account plan to help develop an action plan to comply with the participant fee disclosure requirements. Source: Hawley Troxell Ennis & Hawley LLP

DOL Issues Advisory Opinions Providing Important Guidance on Open MEPs The DOL recently issued two advisory opinions relating to “open” multiple employer plan (MEP) arrangements under which an entity purports to act as plan sponsor and plan administrator under ERISA to a single plan in which unrelated employers participate. The DOL concludes that the Open MEPs are not single retirement plans for purposes of ERISA but are several separate retirement plans separately established and maintained by the individual employers. Source: Practical Law Publishing

DOL Says Open MEPs Are Multiple Plans Under ERISA Sungard/Relius has been alerting its seminar attendees that it was possible the DOL might rule that open MEPs (MEPs in which there was no common bond between the employers other than sharing a service provider) were not single plans under ERISA. On May 25, the DOL issued Advisory Opinion 2012-04A with that ruling: Under ERISA, an open MEP is a series of separate ERISA plans, one for each adopting employer. Source: Sungard/Relius

“Open” Multiple Employer Plan Cannot Be Treated as Single Plan for ERISA Purposes Open MEPs have generated significant discussion. While proponents tout cost-effective accessibility to 401k plans, especially for small and mid-size employers, the DOL has expressed concerns that open MEPs may be susceptible to certain abuses (e.g., excessive fees and lack of fee transparency). Their recent advisory opinion clearly nixes some of the claimed advantages of open MEPs. Source: Thomson Reuters/EBIA

Clearing Up Misconceptions About the New 401k Laws In August, the 401k laws will change and, much like the CARD Act that forced the credit card industry to become more customer friendly, the new 401k laws will provide transparency for plan participants. Although the law makes your 401k plan more transparent, it won’t fix all of the problems you have with your retirement plan. Source:

Request for Additional Guidance on Permitted Mid-Year Changes to Safe Harbor Section 401(k) Plans ASPPA submitted comments to the Internal Revenue Service requesting additional guidance on mid-year modifications to safe harbor plans under Internal Revenue Code sections 401(k) and 401(m). Source: ASPPA

IRS’s Retirement News for Employers — Spring 2012 Edition Among other topics, covers plan errors, plan operations, retirement savings tips, and upcoming conferences. Source: IRS

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