On October 21, the dynamic podcasting duo of Nevin (Adams) & Fred (Reish) brought their engaging, informative, and occasionally alliterative discussion to ASPPA Annual.

As one might expect from a crowd composed of the nation's leading recordkeepers and third party administrators (and a bunch of experts that help them succeed), the discussion was, as always, wide-ranging, including constantly compelling topics like:

Latest Lessons from the Litigation Landscape – fending off fiduciary forfeiture suits

Fiduciary Faux Pas, Pitfalls and Best Practices

Scary stuff from SECURE 2.0 – implications of

Things I Worry About: Automatic Enrollment (1)  https://fredreish.com/things-i-worry-about-automatic-enrollment-1/

Nevin & Fred: Forfeiture Litigation, Meeting Minutes and

What Expenses Can Be Paid from Plan Assets? 

7 Steps to Reduce Fiduciary Exposure  

DOL Successfully Sues Employer for Misuse of Forfeitures  

Limiting Fiduciary Liability (Costs)  

IRS Proposes Regs to Clarify Timing and Use of

Expert Opinions  

The Forfeiture Suits to Date  

In a “live” version of the Nevin & Fred podcast at the

In recent months, the plaintiffs’ bar has “discovered” a new litigation target:  the use of forfeitures to offset employer contributions, rather than to offset plan fees

And—on a related topic—what should/shouldn’t be included in committee meeting minutes!

Episode Resources

What Expenses Can Be Paid from Plan Assets?  https://www.asppa-net.org/news/2018/10/what-expenses-can-be-paid-plan-assets/

IRS Proposes Regs to Clarify Timing and Use of Forfeitures  https://www.napa-net.org/news/2023/2/irs-proposes-regs-clarify-timing-and-use-forfeitures/

Expert Opinions  https://www.napa-net.org/news/2019/2/expert-opinions/

The forfeiture suits to date.  https://www.napa-net.org/header/search/?q=forfeitures

ERISA Advisory Council testimony by: 

Bonnie Treichel - https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/about-us/erisa-advisory-council/2024-qdia-treichel-written-statement-07-10.pdf

Tom Clark:  https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/about-us/erisa-advisory-council/2024-qdia-clark-written-statement-07-10.pdf

The so-called fiduciary rule has been stayed—and legal

About a month ago two separate federal judges put a hold on the effective date (09/23) of the Labor Department’s new fiduciary rule—indefinitely.  n ordering the stay, United States District Judge Jeremy D. Kernodle explained that “the 2024 Fiduciary Rule suffers from many of the same problems” that were found in the version vacated by the Fifth Circuit back in 2018.

On the other (unrelated) hand, the number of suits alleging a fiduciary breach in the use of forfeitures to offset employer contributions is increasing—and most recently those charges have been appended to the more

In light of those trends, what should plan fiduciaries

Episode Resources:

Staff Bulletin: Standards of Conduct for Broker-Dealers and Investment Advisers Account Recommendations for Retail Investors  https://www.sec.gov/tm/iabd-staff-bulletin

Fiduciary Rule

Federal Judge Slams Brakes on Fiduciary Rule  https://www.napa-net.org/news-info/daily-news/breaking-news-federal-judge-slams-brakes-fiduciary-rule

Another Federal Court Slams Fiduciary Rule  https://www.napa-net.org/news-info/daily-news/another-federal-court-slams-fiduciary-rule

Department of Labor Releases Final Investment Advice

Forfeiture Reallocation Litigation

Major Forfeiture Fiduciary Breach Suit Gets Green Light https://www.napa-net.org/news-info/daily-news/major-forfeiture-fiduciary-breach-suit-gets-green-light

Another Excessive Fee Suit (Also) Claims Forfeiture Use a

Nordstrom Nailed With Massive Allegations in 401(k)

Future Live Appearances:

Strategic Retirement Partners:  https://www.srpretire.com/

NAPA 401(k) Summit:  https://napasummit.org 

With far-reaching implications—likely including the Labor

While the full implications will take time to emerge, it’s

Why It Matters

Since 1984, courts have adopted a review framework for

Under the new Supreme Court decision, those administrative agency perspectives can, but do not have to, be considered in deciding the case. In sum, courts will no longer be required to defer to the judgement of

The SECURE 2.0 Act of 2022 included dozens of new OPTIONAL plan design choices for plan sponsors. Nevin (Adams) and Fred (Reish) explore the findings of a new survey of which plan design choices plan sponsors are most likely to adopt.

To gain a better understanding of which optional provisions of the SECURE 2.0 Act plan sponsors are most likely to adopt, Fidelity Investments recently invited more than 2,000 clients to participate in a survey, and from that derived the top-five-ranked optional provisions.  In this episode, Nevin (Adams) and Fred (Reish) talk about

In this episode we also talk about some of the big defined contribution plan trends captured in Vanguard’s annual

If you’re looking to know what’s going on—and what’s coming up—you won’t want to miss this episode of Nevin & Fred!

In this episode, Nevin & Fred discuss new lawsuits regarding fiduciary breaches on the use of plan

In late May a motion to dismiss the suit in one of the half-dozen (and counting) suits challenging the use of plan

Also in late May, participant-plaintiff Debra Hanigan claimed that the plan fiduciaries of the $5.1 billion Bechtel Trust and Thrift Plan “breached their fiduciary duty of

And then in late April, the Labor Department’s new Retirement Security Rule (generally referred to as the

Whew!

In late April the Department of Labor (DOL) released the Retirement Security Rule, generally referred to as the “fiduciary rule.”  Nevin (Adams) and Fred (Reish) take a look at what’s changed —what hasn’t—and what it all means for retirement plan advisors.

This now-final rule updates and broadens the definition of an investment advice fiduciary under the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (IRC).  In this new podcast episode, the

The impact(s) to retirement plan advisors who are already ERISA fiduciaries, and compliant with PTE 2020-02,

How the five-part test has changed,

The implications of the so-called “Hire Me” exception,

What changes to the “regular basis” criteria mean to the “drive-by” plan sale to plan sponsors.

On April 7, 2024, Nevin (Adams) & Fred (Reish) took their popular podcasting platform on the road to Nashville,

In the second part of an expanded session, the prolific podcasting pair pointed to some takeaways from recent litigation trends including:

The importance of fiduciary training  New Fiduciary Suits, TDF Demographics and a Prudent Process Primer |

The meaning of “meaningful benchmarks” Lack of ‘Meaningful Benchmark’ Bounces (Another) 401(k) Excessive Fee Suit | National Association of Plan Advisors (napa-net.org)

Not to mention some predilections and predictions about the pending popularity and proclivities of pooled employer plans (PEPs).  PEPs Will Match Single Employer Plan Adoption in 5 to 10 Years: Fred | National Association of Plan Advisors (napa-net.org)

On April 7, 2024, Nevin (Adams) & Fred (Reish) took their popular podcasting platform on the road to Nashville, Tennessee, for a live version at the NAPA 401(k) Summit—in the middle of a solar eclipse!

During an expanded session, the prolific podcasting pair pointed to some takeaways from recent litigation trends including:

Why it’s important to know/read your plan document

In a recent article on NAPA-Net, Fred Reish opined that PEPs—pooled employer plans—would come to dominate new plan adoption in the next five to 10 years. In this episode, Nevin (Adams) and Fred explore that possibility.

To make his case, Fred posed a counter-intuitive

Well, regardless of what you think about that premise,