Nevin & Fred

Some recent suits – and federal court rulings – provide some timely reminders about the importance of a prudent process and following the plan document. 

In this podcast episode, Nevin (Adams) & Fred (Reish) discuss the background, issues, and implications behind:

Late last year a Pasadena, California, law firm launched a series of suits alleging that the use of forfeitures to offset employer contributions was a fiduciary breach. Nevin (Adams) and Fred (Reish) look at the issue(s) this raises. 

“If this is the law, then that would be news to Congress and the regulatory agencies, which have declared for decades that forfeitures can be used in this manner,” says a recent motion to dismiss a lawsuit alleging a fiduciary breach in offsetting employer contributions with forfeitures. 

On October 31, the Biden Administration rolled out its long-anticipated update to the fiduciary rule. While it’s got a new name (the Retirement Security Rule), it builds on and extends the Labor Department’s reach by both focusing on the needs and perceptions of the retirement investor and eliminating the “regular basis” aspect of the so-called five-part test that has long been an integral component of what was considered to define an ERISA fiduciary. 

In the latest episode Nevin (Adams) and Fred (Reish) consider the historical framework of the ERISA fiduciary definition, how the proposed rule would alter that, and what obstacles lie between that proposal and its ultimate adoption. 

At the 2023 NAPA/NTSA ERISA 403(b) conference, Nevin & Fred took the podcast LIVE to focus on the differences in SECURE 2.0 for 403(b) and 401(k) plans—with a special guest.  And then the focus turned to litigation. Since late 2016, nearly two dozen excessive fee lawsuits have been filed against major universities, raising many of the issues that had previously been raised regarding major 401(k) plans – but with some unique twists as well. That’s right, we closed out the 2023 NAPA/NTSA ERISA 403(b) conference with a live session joined by the inimitable Kelly Famiglietta and discussed: 

Late one recent Friday afternoon, the Department of Labor dropped off a package that would redefine fiduciary investment advice under the Employee Retirement Income Security Act (ERISA).  In this episode Nevin (Adams) and Fred (Reish) explore the possibilities – the history and potential future – of this initiative.

Known officially as “Conflict of Interest in Investment Advice,” according to a post on the Office of Management and Budget’s website, “this rulemaking would amend the regulatory definition of the term fiduciary...to more appropriately define when persons who render investment advice for a fee to employee benefit plans and IRAs are fiduciaries within the meaning of section 3(21) of ERISA and section 4975(e)(3) of the Internal Revenue Code."

As part of that, it purports to consider advisor practices, plan sponsor and participant expectations, and IRA owners who receive investment advice. It would also consider “developments in the investment marketplace,” including compensation structures that could expose advisors to conflicts of interest – and evaluate available prohibited transaction class exemptions and propose amendments or new exemptions.

Attempts to update the regulation – given foundation by the Employee Retirement Income Security Act of 1974 (a.k.a. ERISA) and structure by regulations issued in 1975 (from which the 5-part test came) – are not new.  No fewer than four attempts to do so have been made in the past decade across three Administrations.

In this episode, Nevin & Fred look at those developments – both where we’ve been (and why), what’s changed (and hasn’t), and what the future for this latest iteration and its potential import might be. 

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Summer may be winding down, but there’s been a LOT going on in the retirement world.  In this episode, Nevin (Adams) and Fred (Reish) run down the hot topics, and the implications behind these trends.

We’re talking about:

On April 3, the Nevin & Fred podcast went on the road to San Diego for a live appearance in front of a standing room only crowd at the NAPA 401(k) Summit. 

Along with their alliterative illustrations, Nevin (not Neville — Adams) & Fred (Reish) covered:

• Their favorite provisions of SECURE 2.0 — why — and how it matters to you (and the coverage gap).
• Why 2024 is just four months away.
• The implications of when a plan is “established.”
• The (potential) impact of the last SECURE 2.0 provision to take effect — and why you should be nice to your recordkeeper partners.
• A new industry acronym!

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Over the past several months –following the United States Supreme Court’s decision in Hughes v. Northwestern University – a number of cases, notably the Oshkosh case—and those of CommonSpirit and TriHealth—have brought with them what appears to be a higher standard of “plausibility” in asserting claims that can get past the standard motion to dismiss.

The SECURE 2.0 Act of 2022 was signed into law in the waning days of 2022.  But there are some things that need fixing – and some things you may have overlooked.  Nevin (Adams) and Fred (Reish) highlight five key areas calling for attention.

The short list of things covered in this episode:

• Deleted legislative text that could undermine catch-up contributions
• A typo(?) that could impact required minimum distribution (RMD) timing.
• Required vesting on employee elected Roth treatment of employer contributions
• Mandatory automatic enrollment on new plans – but not till 2025 – and with (potentially) rolling effective dates after that

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In the waning days of 2022, President Biden signed into law legislation that had moved through the House and the Senate on a strong bipartisan basis that greatly expands retirement savings opportunities for working Americans.

In this episode Nevin (Adams) & Fred (Reish) unpack some of the major provisions, and their implications for retirement.

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The U.S. Department of Labor has unveiled its much-anticipated final ESG rule that it says will allow “plan fiduciaries to consider climate change and other environmental, social and governance factors when they select retirement investments and exercise shareholder rights, such as proxy voting.”  The operative word for plan fiduciaries is MAY, not must consider ESG factors—a concern that had arisen in the wake of the proposed regulation previously issued.

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A recent flurry of lawsuits has "targeted" holders of the BlackRock LifePath target-date funds and their decision(s) to select, and hold, on their investment menu.  Ironically, the plan fiduciaries have been charged with "chasing low fees" with a disregard for the funds' performance - which the plaintiffs say was tracked against an inappropriate benchmark.  In this episode, Nevin & Fred look at the issues raised by - and the issues involved in - this new round of ERISA litigation.

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There’s an old saying that when you assume… well, that applies double (and then some) to ERISA plan fiduciaries.  In this episode, Nevin (Adams) and Fred (Reish) discuss five – with reminders about how to avoid winding up in trouble.

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There’s a lot going on in Washington – big movements in the Senate and in the House – and bipartisan.  So, what’s in those bills?  Nevin (Adams) and Fred (Reish) take a look.

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The Labor Department’s expanded definition of fiduciary advice is described in the preamble to PTE 2020-02. The PTE then provides relief for conflicted non-discretionary recommendations (for example, rollover recommendations), IF its conditions are satisfied.

In this episode Nevin & Fred discuss the new parameters, how they’re applied, the conditions that might (and might not) be sufficient to warrant rolling money out of a qualified plan and into an IRA – and the “new” requirement that the justification as to why that move is in the interests of the plan participant – and be in writing, effective July 1.

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When it comes to workplace retirement plans, there are three kinds of people: people who are ERISA fiduciaries and know it, people who aren’t ERISA fiduciaries and know it, and people who are ERISA fiduciaries and don’t know it.

If you’re in the first or last category — well, in this episode Nevin & Fred discuss seven things that every ERISA plan fiduciary should know.

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In Part 2 of their “live” podcast from the NAPA 401(k) Summit, Nevin & Fred discuss ESG (and “material risk and return factors”), tie-breakers, designated investment alternatives, “extreme caution” & cryptocurrency within self-directed brokerage accounts (and beyond) – and Fred’s favorite ERISA case…

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Nevin & Fred take their podcasting on the road for a Live session at the 2022 NAPA 401(k) Summit!

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A hot topic of conversation of late has been crypto currency – and just as it seemed to be making some inroads on some 401(k) platforms, the Labor Department jumped in with something called a Compliance Assistance Release that should certainly give pause to plan fiduciaries.  That follows a bit of a clarification on a stance it issued on the appropriateness of private equity in defined contribution plans in 2020 which, in turn follows a new proposal on ESG, and some commentary on self-directed brokerage accounts (SDBAs).

All that means that there is the potential for a bit of “flux” with regard to some non-traditional DC plan investments.  In this episode Nevin & Fred bat around the issues, the alternatives, and the potential consequences for plan fiduciaries!

In their first episode of 2022, Nevin & Fred look at a new Supreme Court ruling likely to make it harder—perhaps much harder—to dismiss excessive fee lawsuits, the U.S. Supreme Court has remanded for further consideration a lower court decision that the law firm of Schlichter Bogard & Denton had argued had a “chilling effect” on excessive fee litigation.

What happens next?  Check it out...

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In this episode, the dynamic duo of Nevin & Fred take a look (ahead) at the prospects for the fiduciary rule (3.0), ESG, PEPs, Retirement Income (and income projections), industry consolidation & legislative outlook for 2022.

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Environmental, social and governance (ESG)-focused investing is of increasing interest to investors, plan sponsors and…regulators.  In this episode, Nevin & Fred focus on where things stand, what’s changed (and what hasn’t), and what plan fiduciaries/plan advisors should consider doing…now.

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Being a plan fiduciary is a tough job—and one that, it’s probably fair to say—is underappreciated, if not undercompensated.  

This week Nevin and Fred focus on five key missteps that plan committees make - and the best practices that can help keep you out of trouble. 

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Your plan might be an excessive fee litigation target if...join Nevin Adams and Fred Reish for the latest installment of Nevin & Fred.

Nevin & Fred discuss the recent Aon survey on "what drives fiduciary liability", and give you their perspectives on the key takeaways.

Cybersecurity is a hot topic these days, with a new ransomware attack or data breach in the news nearly everyday. In this episode, Nevin & Fred talk about DOL's recommended best practices and the best ways to protect your retirement savings from cyber hacks. 

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It's been said that a committee is a group that keeps minutes and loses hours, but they are an essential element in assuring prudent retirement plan operation and administration. In this episode we cover the who, what, how and how much of retirement plan committees - with some best practices and some things to avoid thrown in for good measure.

Building on a wide-ranging series of retirement plan design enhancements introduced by the Setting Every Community Up For Retirement Enhancement (SECURE) Act of 2019 (hence, SECURE 2.0), Chairman of the House Ways & Means Committee Richie Neal (D-Ma) and Ranking Member Kevin Brady (R-TX) have now introduced a sequel of sorts. Dubbed "SECURE 2.0", the Securing a Strong Retirement Act of 2021 has been introduced and passed the U.S. House Ways & Means Committee, and is now headed for consideration by the full U.S. House of Representatives.  Nevin Adams and Fred Reish take a look at five key provisions, their implications for retirement - and for the retirement security of millions of working Americans.

Join Nevin Adams & Fred Reish for the inaugural episode of "Nevin & Fred: Fresh & Best Perspectives." 

Technically, it’s not a “rule”—but after years of debate, hearings, comments, litigation and preparation, there are some new rules regarding investment advice—and some help for retirement plan advisors. Nevin Adams and Fred Reish take a look at the implications. And have some fun doing it.

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